Holding

Parliament was constitutionally competent to enact AFSPA under Entry 2A of the Union List, and the Act’s provisions, including the power to declare disturbed areas and the special powers granted to armed forces, are valid and not ultra vires, colourable, or arbitrary.

Summary

The Supreme Court examined challenges to the Armed Forces (Special Powers) Act, 1958 (AFSPA) and the Assam Disturbed Areas Act, 1955, along with notifications declaring disturbed areas in several northeastern states. Petitioners argued that Parliament lacked competence to enact AFSPA, that the Act was colourable legislation akin to an emergency proclamation, and that its provisions (especially sections 3, 4 and 6) were arbitrary and violative of Articles 14, 19 and 21. The Court held that Parliament was competent to legislate under Entry 2A of the Union List, that AFSPA merely enables armed forces to assist civil power and does not supplant it, and that the contested provisions are valid, subject to a six‑month periodic review of disturbed‑area declarations. The State Act was upheld except for clauses conferring powers on Assam Rifles, which were struck down. The Court set aside certain High Court directions, allowed some civil appeals in part, dismissed others, and disposed of the writ petitions.

Issues considered

The legislative competence of Parliament to enact the Armed Forces (Special Powers) Act, 1958
Whether AFSPA is colourable legislation or a fraud on the Constitution akin to an emergency proclamation
Whether sections 3, 4 and 6 of AFSPA are arbitrary, unreasonable or violative of Articles 14, 19 and 21
Whether the power to declare a disturbed area under section 3 is a delegation of central power and whether it requires periodic review
Validity of the Assam Disturbed Areas Act, 1955, particularly provisions relating to Assam Rifles
Whether the State Act is repugnant to the Criminal Procedure Code, 1973 and the Arms Act, 1959

Legislation cited

Armed Forces (Special Powers) Act, 1958s. 2(b), s. 3, s. 4(a), s. 4(b), s. 4(c), s. 4(d), s. 5, s. 6
Army Act, 1950s. 41, s. 42, s. 63, s. 64
Code of Criminal Procedure, 1973s. 130, s. 131, s. 41, s. 45

Subjects

legislative competencefederalismarmed forcespublic orderemergency powersAFSPAdisturbed areaArticle 14Article 21delegation of powercolourable legislationperiodic review

Judgment

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

NOVEMBER 27, I997

[J.S. VERMA, CJ., M.M. PUNCHHI, S.C. AGRAWAL, B
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- C
Whether Parliament lacked legislative competence to make Act in respect of
maintenance of public order-Held, is an Act providing for deployment of.
armed forces in aid of civil power; not ultra vires legislative power of
Parliament.

The Armed Forces (Special Powers) Act, 1958, read with Constitution D
of India, Articles 352 and 355-Whether the Act intended to achieve same
result as Proclamation of Emergency or imposition of President's Rule-Held,
no Act, neither co/ourable legislation nor fraud on Constitution-Doctrine
of colourable legislation-Doctrine of pith and substance.

The Armed Forces (Special Powers) Act, 1958, s.3 read with E
Constitution of India Article 14-Power to declare disturbed area for limited
duration-Whether arbitrary-Held, no; there should be periodic review of
declaration before expiry of six months.

TheArmed Forces (Special Powers) Act, 1958, s.3-Whether conferment
on Governor ofpower to make declaration delegation of is power of Central F
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 G
be followed-Code of Criminal Procedure 1973, Ss.41,45-Constitution of
India, Articles 22 (I) and (2).

The Armed Forces (Special Powers) Act, 1958, s.6 read with
Constitution of India, Article 14-Discretion of Central Government to grant H
469
470 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A or refuse sanction for prosecuting person exercising power under the 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
B 2A-Expression "in aid of civil power "-Held, implies that deployment of
armed forces of the Union shall be for enabling civil power in State to deal
with public order; word 'aid' postulates continued existence of authority to
be aided-The Armed Forces (Special Powers) Act, 1958.

c ArticleAssam Disturbed Areas Act, 1955, read with Constitution of India
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.
D
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.
E
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,
F Mizoram, Nagaland and Tripura. S.3 provided for issuance of a notification,
by either the Governor of the State or the Central Government, dedaring the
whole or any part of the State or Union Territory to which the Central Act
was applicable to be a disturbed area. S.4 gave officers of the armed forces
the power5 of firing upon or using force that would cause death, against any
G person acting in contravention of any law in the disturbed area. They were
also empowered to make arrests, searches and seizures. S.6 protected any
person exercising the powers under the Act from prosecution except with the
previous sanction of the Central Government.

The Assam Disturbed Areas Act, 1955 '(State Act)' was enacted to
H make better provision for the suppression of disorder and restoration and
NAGA PEOPLE'S MOYE. OF HUMAN RIGHTS v. U.0.1. 471

maintenance of public order in the disturbed areas in Assam. Under this Act A
also police powers were conferred on members of the armed forces including
the Assam Rifles.

Writ Petitions which were filed in 1980 challenging the Central Act
as well as the State Act were dismissed by the Delhi High Court. The
Central Act was held to be not violative of Articles 14, 19 and 21 of the B
Constitution. The legislative competence of Parliament to make the Central
Act was upheld. However, certain portions of Ss.4 & 5 of the State Act to
the extent they conferred certain powers on members of the Assam Rifles
were held to be beyond the legislative competence of the State Legislature
and consequently struck down. The Writ Petitioners and the State of Assam C
then filed the present appeals before this Court.

In Writ Petitions filed in the Guwahati High Court in 1991, the
proclamation of President's Rule under Article 356 promulgated by the
Government of India on November 27, 1990, the declarations issued under
the Central and State Acts as well as the Acts themselves were challenged. D
A Division Bench of the Guwahati High Court by a judgement in March,
1991 disposed of these Writ Petitions upholding the validity of the Central
and State Acts. However, the High Court directed that the notifications
issued under the Central and State Acts would apply only in respect of some
of the Districts which, going by the report of the Governor of Assam to the E
President of India, could be declared as disturbed areas. Appeals against this
judgemnt were filed in this Court by Union of India, State of Assam as well
as the Writ Petitioners.

Writ Petitions were also filed under Article 32 in this Court challenging
the validity of the Central Act and State Act as well as the notifications F
issued thereunder declaring the disturbed areas in Assam, Manipur and
Tripura.

In relation to the Central Act, the petitioners contended that it was
ultra vires the legislative power of the Parliament inasmuch as it was not G
an enactment providing for deployment of armed forces in aid of civil power
but an enactment with respect to maintenance of public order which was a
field assigned to the State Legislature under Entry 1 of the State List. It was
also contended that the Central Act was in pith and substance a law relating
to 'armed rebellion' within the ambit of the emergency powers contained in
Articles 352 to 360 of the Constitution. Since it did not incorporate the H
472 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A constraints contained under Article 352, the Central Act was a colourable
legislation and a fraud on the Constitution. S.2 (b) of the Central Act which
defined 'disturbed area' to mean an area which was for the time being
declared by a notification to be a disturbed area, was assailed for vagueness
inasmuch as it did not lay down any guidelines for declaring an area to be
a disturbed area. The power conferred on the Governor under s.3 amounted
B to delegation of power of the Central Government which was impermissible.
The power conferred on officers of the armed forces under s.4 (a) to (d) was
questioned as being wide, unreasonable and arbitrary.

Ss. 4 and 5 of the Assam Disturbed Areas Act, 1955 (State Act) were
C assailed on the ground they were inconsistent with the Code of Criminal
Procedure; 1973 and the Arms Act, 1959 and therefore liable to be struck
down. The provisions were also challenged on grounds similar to the challenge
to the Central Act.

Disposing of the Appeals and Writ Petitions, the Court
D
HELD: I.I. The Central Act was not ultra vires the Parliament's
legislative power. Parliament was competent to enact the Central Act in
exercise of the legislative power conferred on it under Entry 2 of List I and
Article 248 read with Entry 97 of List I. After the insertion of Entry 2A in
List I by the Forty-second Amendment to the Constitution, the legislative
E power of Parliament to enact the Central Act flowed from Entry 2-A of List
I. It was not a law in respect of maintenance of public order falling under
Entry I and List II. 1519-G-HI

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
F in aid of the civil power in a State, the said forces shall operate in the State
concerned in cooperation with the civil administration so that the situation
which had necessitated the deployment of the armed forces was effectively
dealt with and normalcy was restored. 1492-BI

G 1.3. During the course of such deployment the supervision and control
over the use of armed forces did not have to be with the civil authorities of
the State concerned; the State concerned would not have the exclusive power
to determine the purpose, the time period and the areas within which the
armed forces should be requested to act in aid of civil power. 1492-A)

H 1.4. The power to make a law providing for deployment of the armed
NAGA PEOPLE'S MOYE. OF HUMAN RIGHTS v. U.0.1. 473
forces of the Union in aid of the civil power in the State did not comprehend ·A
the power to enact a law which would enable the armed forces of the Union
to supplant or act as a substitute for the civil power in the State. 1491-H)

Nungshi Tombi Devi v. Rishang Kelshang, [1982] I GLR 756 and The
Civil Liberties and Human Rights Organisations (CLAHRO) v. P.K. Kukrety,
[1988] 2 GLR 137, referred to. B
Halsbury's Laws ofEngland, Fourth Edition, Vol. 41, pp. 27-28, para
25. referred to.
Union of India v. H.S. Dhillon, 11972[ 2 SCR 33; S.P. Mitta/ v. Union
of India, [1983) 1 SCR 729 and Kartar Singh v. State of Punjab, [1994) 3 C
sec 569, referred to.
2.1. The conferment of the power on the Central Government regarding
declaration of areas to be disturbed areas did not result in taking over of the
State administration by the army or by other armed forces of the Union
because after such declaration by the Central Government, powers under s.4 D
of the Central Act could be exercised by the personnel of the armed forces
only with the cooperation of the authorities of the State Government concerned.
1493-C]

2.2. The powers conferred under s.4 of the Central Act did not enable
the armed forces of the Union to supplant or act as substitute for the civil E
power of the State and the Central Act only enabled the armed forces to
assist the civil power of the State in dealing with the disturbed conditions
affecting the maintenance of public order in the disturbed area.
(492-H; 493-A]

Report of the Sarkaria Commission on Centre States Relations, para F
7.5.01, Part I, pp.198-99, referred to.

3.1. The Central Act, which is primarily enacted to confer certain
powers on armed forces whea deployed in aid of civil power to deal with the
situation of internal disturbance in a disturbed area had not been enacted to
deal with a situation which could only be dealt with by issuing a proclamation G
of emergency under Article 352. 1496-G)
3.2. The enactment of the Central Act could not be equated with the
exercise of the power under Article 356 of the Constitution. (497-G]
4. The Central Act was not open to challenge on the ground of being
a colourable legislation or a fraud on the legislative power conferred on H
474 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A Parliament since Parliament was competent to enact the Central Act.

K.C.Gajapati Narayan Dea v. The State of Orissa, 119541 SCR I and
R.S. Joshi v. Ajit Mills Ltd., 119781 I SCR 338, referred to. ...
5.1. No arbitrary and unguided power had been conferred in the matter
B of declaring an area as disturbed area under S.2(b) read with S.3 of the
Central Act.1500-CI

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
c form an opinion that the area was in such a disturbed or dangerous condition
that the use of armed forces in aid of the civil power was necessary.
(500-81

5.3. Keeping in view the fact that the declaration about an area being
D declared as a 'disturbed area' could be issued only in a grave situation of
law and order as _well as the extent of the powers that could be exercised
under S.4 of the Central Act in a disturbed area, a periodic review of the
declaration made under S.3 of the Central Act should be made by the
Goverment I Administration that has issued such d~claration before the
expiry of a period of six months. (501-CI
E
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
F whether the declaration should be continued and, in case the declaration was
required to be continued, whether the extent of the disturbed area should be
reduced. [501-FI

5.5. Although a declaration under s.3 could be made by the Central
G Government suo motu without consulting the concerned State Government,
it is desirable that the State Government should be consulted by the Central
Government while making the declaration. (521-AI

6. t. The conferment of power on the Governor of the State to make the
declaration under s.3 could not be regarded as delegation of power of the
H Central Government.1521-81
NAGA PEOPLE'S MOVE .. OF HUMAN RIGHTS v. U.0.L 475

. ,, 6.2. By virtue of Article 355 the Union owed a duty to protect the States A
against internal disturbance and since the deployment of armed forces in aid
of civil power in a State was to be made by the Central Government in
discharge of the said constitutional obligation, the conferment of the power
to issue a declaration on the Central Government was not violative of the
federal scheme as envisaged by the Constitution. [502-H]
B
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 C
violative of Article 14 of the Constitution. [503-G]

-\
Decision of Delhi High Court in Civil Appeals Nos. 721-24 of 1985
reported in, AIR (1983) Delhi SB, affirmed. .

8.1. The powers conferred under clauses (a) to (d) of ss.4 and 5 .of the D
Central Act on the officers of the .armed forces, including a 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 E
was not unreasonable. The powers u/s 4(a) could be exercised only when (a)
a prohibitory order of the nature specified in that clause was in force in the
disturbed area; (b) the officer exercising those powers formed the opinion
that it was necessary to take action for maintenance of public order against
the person/persons acting in contravention of such prohibitory order; and (c)
a due warning as the officer considered necessary was given before taking F
action. The laying down of these conditions gave an indication that while
exercising the powers the officer shall use minimal force required for
effective action against the person/persons acting in contravention of the
prohibitory order.

G
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[ H
476 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A 8.4. The conferment of the power under s.4 (b) to destroy the structure
utilised as a hide-out by absconders in order to control such activities could
not be held to be arbitrary or unreasonable. Absconders wanted for an
offence where !lersons who were evading the legal process. In view of their
past activities the possibility of their repeating such activities could not be
B excluded.1506-FI
8.5. The power conferred under s.4(c) read with s.5 had to be exercised
in consonance with the overriding requirements of clauses (I) and (2) of
Article 22 of the Constitution which meant that the person wtw was arrested

C
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
D person can be detained in custody beyond the said period without the authority
of a Magistrate. 1507-B-C]

8.6. The provisions of the Cr. P.C. governing search and seizure has
to be followed during the course of a search and seizure under s.4 (d) and
the property or arms, ammunition seized during the course of such search
E had to be produced by the officer of the armed forces before the nearest
police station with the least possible delay along with a report of the
circumstances occasioning such delay. [508-C]

State of Nagaland v. Ratan Singh, [19661 3 SCR 830, referred to.
F
9.1. S.6 of the Central Act in so far as it conferred a discretion on the
Central Government to grant or refuse sanction for instituting prosecution
or a suit or proceeding against any person in respect of anything done or
purported to be done in exercise of the powers conferred by the Act does not
G suffer from the vice of arbitrariness. The protection given under s.6 was not
a conferment of an immunity on the persons exercising the powers under the
Central Act. It only gave protection in the form of previous sanction of the
Central Government before a criminal prosecution of a suit or other civil
proceeding was instituted against such person. [508-E-Fl

H 9.2. Since the order of the Central Government refusing or granting
NAGA PEOPL[;:'S MOVE. OF HUMAN RIGHTS v. U.0.1. 477
the sanction under s.6 was subject to judicial review, the Central government A
had to pass an order giving reasons. 1509-C)

Mat(Jiog Dobey v. H.C.Bhari, !19551 2 SCR 925, referred to.

10.1. The instructions in the form of "Do's and Don'ts" had to be
treated as binding instructions which were required to be followed by the B
members of the armed forces exercising powers under the Central Act and
a serious note had to be taken of violation of the instructions and the persons
found responsible for such violation had to be suitably punished under the
Army Act, 1950. 1514-El

10.2. In order that the people may feel assured that there was an c
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 D
requisite sanction under s.6 of the Central Act should be granted for
institution of prosecution and/or a civil suit or other proceeding against the
person/persons responsible for such violation. 1515-C-D)

State of Uttar Pradesh v. Chandra Mohan Nigam, 1197811 SCR 521
and Supreme Court Advocates-On-Record Association v, Union of India, E
11993) 4 sec 441, referred to.

I I. I. The State Act was, in pith and substance, a law in respect of
maintenance of public order enacted in exercise of the legislative power
conferred on the State Legislature under Entry I ofList II. (522-GI
F
11.2. The expression "or any officer of the Assam Rifles not below the
rank of Havildar" occurring in s.4 and the expression "or a.!ly officer of the
Assam Rifles not below the rank of Jamadar" in s.5 of the State Act were
unconstitutional since Assam Rifles was a part of the armed forces of the
Union and the State Legislature in exercise of its power under Entry ,I of
List II was not competent to enact a law in relation to armed forces of the G
Union. (52:2-H; 523-Aj

11.3. The provisions of ss.4 and 5 of the State Act were not inconsistent
with the provisions of Arms Act. The said provisions only provided for
effective enforcement of the provisions of the Arms Act in the disturbed
areas and they did not, in any way, encroach upon the field covered by the H
478 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A Arms Act. 1523·81
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
B
12.2. On the basis of the Report sent by the Governor of Assam it could
not be said that the districts which have been excluded from the notification
by the High Court could not be declared as "disturbed areas''. 1517-FI

12.3. The direction given by the High Court that the notification dated
C November27, 1990 issued under s.3 of the Central Act would not apply to
the districts aforementioned could not, therefore, be sustained and has to be
set aside. 1523-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
D and in Entry 1 of List II implied that deployment of the armed forces of the
Union shall be for the purpose of enabling the civil power in the State to deal
with the situation affecting maintenance of public order which had necessitated
the deployment of the armed forces in the state. [520-A]

13.2. The word "aid" postulated the continued existence of the authority
E to be aided. This would mean that even after deployment of the armed forces
the civil power would continue to function. 1520-B[

CRIMINAL O.RIGINAL JURISDICTION : Writ Petition (Cr!.) No.550 of
1982 Etc. Etc. Under Article 32 of the Constitution of India.

F Ashok H .Desai, Attorney General, M.S. Usgaonkar, Additional Solicitor
General, Kapil Sibal (A.C.), Ms. Indra Jaisingh, Prashant K. Goswami, Shanti
Bhushan, S.N. Choudhary, Dr. Rajeev Dhawan, S.R. Bhat, Rakesh Shukla, Ms.
Neeru Vaid, Lalit Mohan Bhat, Naveen R. Nath, Ms. Hetu Arora, Ms. Anita
Shenoy, Ms. Anita George, P.H. Parekh, N.K. Sahoo, Ms. Deepa, Pravir
Choudhary, Ms. Renu George, M.K. Giri, Dr. S.C. Jain, P. Parmeshwaran, Ms.
G Anil Katiyar, Pallav Sisodia, Wasim A. Qadri, Ms. Anu Bindra, Krishnan
Venugopal, Shakil Ahmed Syed, S.K. Nandi, Ranjan Mukherjee, Kailash
Vasdev, C.K. Sasi, Sunil Kumar Jain, Vijay Hansaria, Jatinder Kumar Bhatia,
Navin Prakash, Ms. S. Janani, S.K. Bhattacharya and R.S. Sodhi for the
appearing parties.

H The Judgment of the Court was delivered by
NAGA PEOPLE'S MOYE. OF HUMAN RIGHTS v U.0.1. lS.C. AGRAWAL, .I) 479
S.C. AGRA WAL, J. These writ petitions and appeals raise common A
questions relating to the validity of the Armed Forces (Special Powers) Act,
1958 (as amended) enacted by Parliament (hereinafter referred to as 'the
Central Act') and the Assam Disturbed Areas Act, 1955 enacted by the State
Legislature of Assam (hereinafter referred to as 'the State Act').

The Central Act was enacted in 1958 to enable certain special powers B
to be conferred upon the members of the armed forces in the disturbed areas
in the State of Assam and the Union Territory of Manipur. By Act 7 of 1972
and Act 69 of 1985 the Central Act was amended and it extends to the whole
of the State of Arunachal Pradesh, Assam, Manipur, Meghalya, Mizoram,
.... Nagaland and Tripura. The expression "disturbed area" has been defined in C
Section 2(b) to mean an area which is for the time being declared by notification
under section 3 to be a disturbed area. Section 3 makes provision for issuance
of a notification declaring the whole or any part of State or Union Territory
to which the Act is applicable to be a disturbed area. Jn the said provision,
as originally enacted, the power to issue the notification was only conferred
on the Governor of the State or the Administrator of the Union Territory. By D
the Amendment Act of· 1972 power to issue a notification under the said
provision can also be exercised by the Central Government. Under Section 4
a Commissioned Officer, Warrant Officer, Non-Commissioned Officer or any
other person of equivalent rank in the armed forces has been conferred
special powers in the disturbed areas in respect of matters specified in clauses E
(a) to (d) of the said section. Section 5 imposes a requirement that a person
arrested in exercise of the powers conferred under the Act must be handed
over to the officer incharge of the nearest police station together with a report
of the circumstances occasioning the arrest. Section 6 confers protection to
persons acting under the Act and provides that no prosectution, suit or other
legal proceeding shall be instituted, except with the previous sanction of the F
Central Govennent, against any person in respect of anything done or purported
to be done in exercise of the powers conferred by the Act.

The State Act was enacted with a view to make better provision for the
suppression of dis-order and for restoration and maintenance of public order G
in the disturbed areas in Assam. Section 2 of the State Act also defines
disturbed area to mean an area which is for the time being declared by
notification under Section 3 to be a disturbed area. Section 3 lays down that
the State Government may, by notification in the official gazette of Assam,
declare the whole or any part of any district of Assam, as may be specified
in the notification, to be a disturbed area. Sections 4 and 5 confer on a H
480 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A Magistrate or Police Officer not below the rank of Sub-Inspector or Havildar
in case of Armed Branch of the Pol ice or any officer of the Assam Rifles not
below the rank of Havildar/Jamadar powers similar to those conferred under
clauses (a) and (b) of Section 4 of the Central Act. Section 6 confers protection
similar to. that conferred by Section 5 of the Central Act.

B C.A. Nos. 721-724of1985 arise out of the writ petitions [Civil Rule Nos.
182 of I 980, 192 of 1980 and 203 of I 980] filed in the Gauhati High Court.

In Civil Rule Nos. 182of1980 and I92 of I980 the validity of the Central
Act as well as the State Act and the notifications dated April 5, 1980 issued
C thereunder were challenged, while in Civil Rule No. 203of1980 the proclamation
dated December 14, 1979 issued by the President under Article 356 of the
Constitution and the Assam Preventive Detention Ordinance, I 980 were
challenged. In Civil Rule No. 182 of 1980 a learned Single Ju~ge of the High
Court passed an ex-parte order staying the notification dated April 5, 1980
issued by the Government of Assam under the Central Act. An appeal was
D filed against the said order of the learned Single Judge before the Division
Bench of the High Court. All these three Civil Writ Petitions and the appeal
were transferred to the Delhi High Court by this Court and were registered
as Civil Writ Petitions Nos. 832-34of1980 and L.P.A. No. 108of1990 in the
Delhi High Court. All these matters were disposed of by a Division Bench of
E the said High Court by judgment dated June 3, 1983. The High Court has
observed that in C. W.P. No. 834/80 [Civil Rule No. 203 of 1980] the challenge
was to the validity of the Assam Prevention Detention Ordinance, 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
F 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
G Act in exercise of statutory power conferred under Entries I and 2 of List I
read with Article 246 of the Constitution. The High Court has also held that
the provisions of the Central Act cannot be held to be violative of Articles
14, 19 and 21 of the Constitution. As regards the State Act the High Court
has held that the Assam Rifles is a part and parcel of other armed forces of
Union of India as postulated in Entry 2 of List I of the Constitution and the
H State Legislature of Assam could not legislate with regard to Assam Rifles.
NAGA PEOPLE'S MOVE. OF HUMAN RIGHTS 1·. U.0.1. [S.C. AGRAWAL, J.] 481

Sections 4 and 5 of the State Act, to the extent they confer certain powers A
on the personnel of Assam Rifles, have been held to be beyond the legislative
power of the State Legislature and the words "or any officer of the Assam
Rifles not below the rank of Havildar" in section 4 and the words "or any
officer of the Assam Rifles not below the rank of Jamadar" in section 5 of
the State Act have been struck down and rest of the provisions of the State B
Act have been upheld. The declarations issued by the Governor of Assam
under section 3 of the Central Act and section 3 of the State Act have also
been upheld by the Act. Civil Appeals Nos. 721-24 of 1985 have been filed
by the petitioners in the writ petitions against the said judgment of the Delhi
High Court. The State of Assam has not filed any appeal against the decision
of the High Court striking down the aforementioned words in sections 4 and C
5 of the State Act.

Civil Rule Nos. 2314, 2238 & 2415of1990 and Civil Rule No.I I of 1991
were filed in the Gauhati High Court wherein proclamation dated November
27, 1990 promulgated by the Government of India under Article 356 of the
Constitution as well as declaration dated November 27, 1990 issued under D
section 3 of the Central Act and declaration dated December 7, 1990 issued
under section 3 of the State Act were challenged. In these Writ Petitions the
validity of the Central Act as well as the State Act was also challenged: All
these Writ Petitions were disposed of by a Division Bench of the Gauhati
High Court by judgment dated March 20, 1991. Since the Proclamation dated E
November 27, 1990 issued under Article 356 of the Constitution of India had
expired during the pendency of the writ petitions the High Court observed
that the relief sought in that regard had become infructuous. The High Court
has held that the questions regarding the validity of the Central Act and the
State Act were concluded by the earlier judgment of the Delhi High Court and
the same cannot be reopened. Taking note of the report of the Governor of F
Assam to the President of India which led to the Proclamation under Article
356 of the Constitution the High Court has held that only some of the districts
in the State of Assam as mentioned in the said report could be declared as
disturbed areas. The High Court has, therefore, directed that notification
dated November 27, 1990 issued under the Central Act and notification dated G
December 7, 1990 issued under the State Act shall apply only in respect of
the districts of Dibrugarh, Tinsukia, Sibasagar, Jorhat, Nagaon, Dhemaji,
Lakhimpur, Sonitpur, Darrang, Nalbari, Barpeta and the city of Gauhati and
shall not apply in the districts of Golaghat, Morigaon, Dhubri, Kokrajhar,
Bongaigaon, Goalpara, Kamrup (except the city ofGauhati), Karbi Anglong,
North Cachar Hills, Cachar, Karimganj and Hailakandi. The High Court has H
482 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.'

A also directed the Central Government under the Central Act and the State
Government under the State Act to review every calendar month whether the
two notifications are necessary to be continued. The High Court has also
directed that legal poin~s decided by the High Court in the earlier decisions
in Nungshi Tombi Devi v. Rishang Keishang, (1982) l GLR 756, and The Civil
B liberties and Human Rights Organisations (CLAHRO) v. P.K. Kukrety, (1988)
2 GLR 137, be made known to Commissioned Officers, Non-Commissioned
Officers, Warrant Officer, and Havildars and has further directed the Central
Government and Government of Assam to issue the following instructions to
the above-mentioned officers :-

(a) Any person arrested by the armed forces or other armed forces of
c 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,
D
innocent persons are not to be arrested and later to give a clean chit
to them as is being 'white'.

Civil Appeals Nos. 2173-76 of 1991 have been filed by the Union of
India, the State of Assam and other respondents in the writ petition against
E the said judgment of the Gauhati High Court dated March 20, 1991 in Civil
Rules Nos. 2314, 2238 & 2415 of 1990. Civil Appeal No. 2551 of 1991 has been
filed by the petitioner in Civil Rule No. 11 of 1991 against the said judgment.
The appellant in the Civil Appeal No. 2551 of 1991 has died and the said
appeal has abated.

F In the Writ. Petitions filed under Article 32 of the Constitution the
validity of the Central Act and the State Act as well as the notifications
issued the said enactments declaring disturbed areas in the State of Assam,
Manipur and Tripura have been challenged. Jn these writ petitions allegations
have been made regarding infringement of human rights by personnel of
G armed forces in exercise of the powers conferred by the Central Act. The
notifications regarding declaration of disturbed areas have ceased to operate.
The allegations involing infringement of rights by personnel of armed forces
have been inquired into and action has been taken against the persons found
to be responsible for such infringements. The only question that survives for
consideration in these writ petitions is about the validity of the provisions
H of the Central Act and the State Act.
NAGA PEOPLE'S MOVE. OF HUMAN RIGHTS v. U.0.1. [S.C. AGRAWAL. J.] 483
We have heard Shri Shanti Bhushan, Ms. Indira Jaisingh, Shri Kapil A
Sibal on behalf of the petitioners in the writ petitions and in the civil appeals
we have heard Shri P.K. Goswami on behalf of the petitioners in the writ
_,,,. petitions filed in the High Cou~. The learned Attorney General has addressed
the Court on behalf of the Union of India. The National Human Rights
Commission has been permitted to intervence and Shri Rajiv Dhawan has B
addressed the Court on its behalf.

As noticed earlier, the provisions contained in the State Act are also
found in the Central Act which contains certain additional provisions. The
submissions on the validity of the provisions of the Central Act would cover
the challenge to the validity of the State Act. We would, therefore, first deal
with the questions relating to the validity of the Central Act. But before we c
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 D
General of Police or other officer authorised by the State Goverment in that
behalf can employ any police force in addition to the ordinary fixed complement,
to be quartered in the area specified in such proclamation. Sub-section (6) of
Section 15 prescribes that every such proclamation issued under sub-section
(l) shall indicate the period for which it is to remain in force, but it may be E
withdrawn at any time or continued from time to time for a further period or
periods as the State GoveJ;j)lent may in each case think fit to direct. The Police
Act makes no provision for deployment of armed forces.
-,"/' ·;.

To deal with the situation arising in certain provinces on account of the
partition of the country in 194 7 the Govern er General issued four Ordinances, F
namely, (1) The Bengal Disturbed Areas (Special Power of Armed forces)
Ordinance, 1947 (l l of 1947); (2) The Assam Disturbed Areas (Special Powers
of Armed Forces) Ordinance, 1947 (14of1947); (3) The East Punjab and Delhi
Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947(17 of
1947) and (4)The United Provinces Disturbed Areas (Special Powers of Armed
Forces) Ordinance, 1947 (22of1947). These Ordinances were replaced by the G
Armed Forces (Special Powers) Act, 1948 (Act no. 3 of 1948). sections 2 and
3 of the Act provided as follows :

''Section 2. Special powers of officers of military or air forces: - Any
commissioned officer, warrant officer or non commissioned officer of
His Majesty's military or air forces may, in any area in respect of which H
484 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A a Proclamation under sub-section (I) of section 15 of the Police Act,
1861 (V of 1861) is for the time being in force or which is for the time
being by any form of words declared by the Provincial Govern.men!
under any other law to be a disturbed or dangerous are<\,

(a) If in his opinion it is necesa:·y so to do for the maintenance of
B public order, after giving such warning, if any, as he may consider
necessary, fire upon or otherwise use force, even to the causing of
death, against any person who is acting in contravention of any law
or order for the time being in force in the said area prohibiting the
assembly of five or more persons or the carrying of weapons or of
things capable of being used as weapons;
c
(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
D 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
E 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
F was, however, continued till it was repealed by Act 36 of 1957.

Thereafter the Central Act was enacted by Parliament. It was known as
the Armed Forces [Assam and Manipur] Special Powers Act, 1958 and it
extended to the whole of the State of Assam and the Union Territory of
G Manipur. 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
H 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 A
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 B
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" C
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 D
(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 E
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 F
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.
G
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 H
486 SUPREME COURT REPORTS [1997] SUPP. 5 SC.R.

A 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
(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
(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 (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
E 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
F 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
G 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.) :-

H ''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 A
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 B
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 C
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 D
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, E
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." F

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 G
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 H
488 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A 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,
a 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
B 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
C 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
D 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
E 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, I976, the
relevant entries were as follows :-
F
"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
G 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
H 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 A
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 B
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 C
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 D
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 E
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 F
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
G
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 H
490 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A 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
B 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
C 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,
D 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
E 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
F 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
G 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
H 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" A
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 B
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.
c
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 D
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 E
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 F
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 G
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 H
492 SUPREME COURT REPORTS [1997] SUPP. 5 S.Cjt

A 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
B 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
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 is
restored.
c
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
D 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
E 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
F 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
G 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
H 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 A
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 B
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 C
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 D
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 E
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 F
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 G
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. H
494 SUPREME COURT REP.ORTS [1997] SUPP. 5 S.C.R.

A 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
B 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
C 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
D 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
E 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
F 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
G 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
H 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 A
: ~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 B
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 C
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, D
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 E
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 F
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 G
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 a
threat to the security of the country or a part thereof on account of war or
external aggression or armed rebellion and to exclude the invocation of H
496 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A 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
B 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
C 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
D 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 a proclamation of emergency under Article 352 are thus much more drastic
and far reaching and, therefore, the Constitution takes care to provide for
E 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
F 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
G 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.

H 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 A
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 B
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 . C
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 D
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 E
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 F
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 G
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 H
498 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A 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
B 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
c 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
D 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
E 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,
F
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
G 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]

H 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 A
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.
B
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 C
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. D

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 E
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 F
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. G
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 H
500 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A 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
B 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
C 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 Central Act.

The 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
D 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 conferrring a power to issue a declaration
without any time limit. The definition of'disturbed area' in Section 2(b) of the
Central Act talks of "an area which is for the time being declared by
E notification under Section 3 to be a disturbed area". (emphasis supplied). 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 6duration and a declaration can be issued only
F 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 the situation. During the course of the
arguments, the learned Attorney General has made the following statement
G indicating the stand of the Union of India in this regard:-

"It is stated on behalf of the Government of India that it keeps all
notifications it has issued under the Armed forces (Special Powers)
Act, under constant review. It states that even in future while the
notifications themselves may not mention the period it will review all
H future notifications within a period of at the most one year from the
NAGA PEOPLE'S MOVE. OF HUMAN RIGHTS v. U.0.1. [S.C. AGRAWAL, I] 501
date of issue, and if continued, within a period of one year regularly A
thereafter. As far as the current notifications are concerned, their
continuance will be reviewed within a period of three months from
today. The Government may also review or revoke the notifications
earlier depending on the prevailing situation."

The learned conunsel for the petitioners have urged that the period of B
one year is unduly long and have invited our attention to the provisions
contained in Articles 352 and 356 which postulate periodic review of a
proclamation issued under the said provisions after six months. It has been
urged that there is no reason why a longer period should be required for
review of a declaration under Section 3 of the Centrnl Act. Keeping .in view
the fact that the declaration about an area being declared as a 'disturbed area' C
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 D
of six months.

There is one other aspect which cannot be ignored. The primary task
of the armed forces of the Union is 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 E
in handing such a situation brings them in confrontations 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 F
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 G
continued and, in case the declaration is required to be continued, whether
the extent of the disturbed area should be reduced.
Shri 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 for H
502 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A 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 Sate cannot be held to be vaild.
There is a basic infirmity in this contention. There is a distinction between
delegation of power by a statutory authority and statutory conferment of
B 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,
(I) the Governor of the State. (2) the Administrator of the Union Territory, and
(3) the Central Government. In view of the information available at the local
C level the Governor of the State or the Administrator of the Union Territory
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 anned forces of
the Union in aid of the civil power for the purpose of dealing with the
situation that has arisen in the concerned State or the Union Territory.
D Moreover, the issuance of a declaration, by itself, would not oblige the
Central Government to deploy the armed forces of the Union. After such a
declaration has been issued by the Governor/ Administrator the Central
Government would have to take a decision regarding deployment of the anned
forces of the Union in the area that has been declared as a 'disturbed area'.
The conferment of power on the Governor of the State to make the declaration
E under Section 3 cannot, therefore, be regarded as delegation of power of the
Central Government.

Shri Dhawan has taken a different stand. He has assailed the confennent
of power to issue a declaration under Section 3 on the Central Government
on the ground that the words 'in aid of the civil p;iwer' postulate that the
p State alone should consider whether the public order requires armed forces
of the Union to 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 forces of the Union
G to be deployed in aid of the civil power is a matter which has to be considered
by the Governor of the State/Administrator of the Union Territory 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 :iid of civil power in a State is to be made by the Central Government in
H discharge of the said constitutional obligation, the conferment of the power
NAGA PEOPLE'S MOVE. OF llUMAN RIGHTS v.U.O.l. [S.C. AGRAWAL J] 503
to issue a declaration on the Central Government cannot be held to be A
violative of the federal scheme as envisaged by the Constitution.
As 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 Cr.P.C. to deal with a situation requiring the use
of armed forces in aid of civil power and that there is no justification for B
having a special law, as the Central Act, unless it can be shown that the said
provisions in Sections 130 and 131 Cr. P.C. are not adequate to meet the
situation. It has been submitted that Sections 130 and 131 Cr.P.C. 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 C
the situation in the general law (Cr.P.C.) 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. D
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 E
whole or a part of a State is in a disturbed or dangerous condition and it has
not been possible for the civil power of the State to deal with it and it has
become necessary to seek the aid of the armed forces of the Union for dealing
with the disturbance. Similarly, under Section 131 Cr.P.C. 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 F
unlawful assembly. The provisions in Section 130 and 131 Cr.P.C. 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 Cr.P.C. G
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 the Constitution.
The provisions of Section 4, in general, have been assailed by the
learned counsel for the petitioners on the ground that the said powers can H
504 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A also be exercised by a Non-Commissioned Officer who is much inferior in rank
and that as a result of th~ conferment of these powers on a junior officer, there
is likelihood of the powers being misused and abused. The learned Attorney
-
General has, however, pointed out that an infantry battalion in the area is
required to cover large areas wherein it is deployed on grid pattern with
special reference to sensitivity of certain areas and important installations/
B vital points. The deployment is either in sections or platoons which are
commanded by Commissioned Officer/Junior Commissioned Officers
respectively. Any operation in a counter insurgency environment is normally
under a Commissioned Officer/Junior Commissioned Officer, depending on
the nature of the operation. However, during an operation the group is
required to be further sub divided into teams which are commanded by Non
C Commissioned Officers. As regards Non Commissioned Officers it has been
pointed out that a jawan is promoted to the rank of Naik after approximately
8 to I 0 years of service and to the rank of Havildar after 12 to 15 years of
service and that a Non Commissioned Officer exercising powers under Section
4 is a mature person with adequate experience and is reasonably well versed
with the legal provisions. This aspect of the case has been considered by the
D Delhi High Court in the judgment under appeal in Civil Appeals Nos. 721-24
of 1985 (reported in AIR 1983 Delhi 5 I 3) wherein it has been observed:-

"The argument is based on unawareness of the rank and
responsibillities of officers like Havildars. In army setup or setups
following the army pattern Havildar is not such a junior official or
E
such an irresponsible officer as Mr. Salve apprehends. The usual
organisational set up is that three or more battalions constitute a
Regiment. Three or more companies constitute a battalion. Each
company is commanded by a Commissioned Officer or an officer of
an equivalent rank. The company itself is divided into platoons, each
F platoon is again commanded by a Commissioned Officer or an officer
of equivalent rank. Each platoon is divided into three sections. The
sections Commanders are usually Naiks. The Non-Commissioned
Officer incharge of the Platoon or a section of the Platoon is a
Havildar. He is the direct link between the Commissioned Officer and
the jawans as well as section Commanders. A Jawan first becomes a
G Lance Naik, then a Naik and thereafter a Havildar. The classes of ranks
apart from the Commissioned Officers or Officers of equivalent rank,
are Subedar Major, Subedar, Jamadar, Havildar Major, Havildar/
defenders, Naik and Lance Naik and a soldier. In the hierarchy, therefore,
a Havildar is fairly high and certainly holds a very responsible position.
When troops or forces are deployed the sections or the patrols are
H by and large commanded by Havildars. That is why the Havildars are
NAGA PEOPLE'S MOVE. OF HUMAN RIGHTS v. U.0.1. [S.C. AGRAWAL, l] 505
treated as and recognised as Non-Commissioned Officers. The three A
categories of officers generally are Commissioned Officers, Junior
Commissioner Officers and Non-Commissioned Officers. Havildars are
Non-Commissioned Officers.''
[pp, 533,534]

Having regard to the status and experience of the Non-Commissioned B
Officers in the Army and the fact that when in Command of a team in a
counter insurgency operation they must operate· on their own initiative, it
cannot be said that conferment of powers under Section 4 on a Non-
commissioned Officer renders the provision invalid on the ground of
arbitrariness.

We may now examine the submissions of the learned counsel for the
c
petitioners assailing the validity of clauses (a) to (d) of Section 4 of the
j Central Act.

As regards clause (a) of Section 4 the submission is that it empowers
any Commissioned Officer, Warrant Officer or Non-Commissioned Officer or D
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 fire arms,
ammunition or explosive substances. It has been urged that the conferment E
of s.uch 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 in for maintenance of public order against the person/persons
acting contravention of such prohibitory order; and ( c) a due warning as the F
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 arbitrainess
or is unreasonable. G
Shri Dhawan has submitted that the power conferred under Section 4(a)
must be so construed that it can be 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 H
506 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A 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 of fire-arms
ammunition or explosive substances. The two orders are different in nature
B in the sense that an order prohibiting the assembly of five or more persons
can be issued under Section 144 Cr.P.C., while an order prohibiting the carrying
of weapons or of things capable of being used as weapons or of fire-arms,
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 Shri Dhawan, the result
C 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 be accepted.

Section 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
D 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. 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 hide-out by absconders wanted for any
E offence and that, to that extent, it is invalid . 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 hide-out by such absconders in order
F to control such activities cannot be held to be arbitrary or unreasonable.

Under 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 concerned officer is empowered to use
G such force as may be necessary to effect the arrest. The said power is not
' different from the power which has been conferred on a police officer
very
under Section 4 I Cr.P.C. 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 officer in charge of the nearest police station with the least
possible delay, together with· a report of the circumstances occasioning the
H arrest. It has been urged that there is nothing in Section 5 to indicate that
NAGA PEOPLE'S MOVE OF HUMAN RIGHTS 1·. U.0.L [S.C AGRAWAL. J.] 507

the officer exercising the power of arrrest under Section 4(c) is obliged to A
comply with the requirements of clauses (a) and (2) of Article 22 of the
Constitution. There is no basis for this contention. The power conferred
under Section 4(c) read with Section 5 has to be exercised in consonance with
the overriding requirements of clauses (I) and (2) of Article 22 of the
Constitution which means that the person who is arrested by an officer
specified in Section 4 has to be made over to the officer in charge of the B
nearest police station together with a report of the circumstances occasioning
the arrest with the least possible delay so that the person arrested can 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 C
custody beyond the said period without the authority of a Magistrate.

In clause ( d) of Section 4 power has been conferred to 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 permises, and D
the concerned officer may for that purpose use such force as may be necessary.
Similar powers of search are conferred on a police officer under Section 47
Cr.P.C. It has been urged that in respect of property or arms, ammunition or
explosive substances which are seized during the course of search under
clause (d) there is no provision similar to Section 5 requiring the officer E
exercising the said power to hand over the property and arms, ammunition or
explosive substances that are recovered in the search to the officer in charge
of the nearest police station. !t is no doubt true that there is no provision
similar to Section 5 requiring the handing over of the property or arms,
ammunitions etc. that are seized during the course of search tinder Section
4(c) but since such seized property or material will be required in the F
proceedings to be initiated against the culprits from whose possession the
same was recovered, it is implicit in the power that has been conferred under
Section 4 (d) that it.should be exercised in accordance with the provisions
relating to search and seizure contained in the Criminal Procedure Code and
the property or the arms, ammunitions, etc. that is seized during the course
of search under Section 4( d) must be handed over to the officer in charge of G
the nearest Police Station with the least possible delay together with a report
of the circumstances occasioning the search and seizure.

An argument was raised that in view of the proviso to sub-section (2)
of Section I Cr.P.C. the provisions of Cr.P.C., other than those relating to
Chapters Vlll, X and XI thereof, are not applicable to the State of Nagaland H
508 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A and tribal areas in the States of Assam, Meghalaya, Tripura and Mizoram. The
inapplicability of the provisions of Cr.P.C. in ;those areas, in our opinion, is
of little consequence because in the context of Nagaland this Court has laid
down that even though the provisions of Cr.P.C. are not applicable in certain
districts of the State of Nagaland, it only means that the rules of the Cr.P.C.
would not apply but the authorities would be governed by the substance
B of these rules. [See : State of Nagaland v. Ratan Singh, etc., [1966] 3 SCR
830, at pp. 851, 852]. In the circumtances, it must be held that the provisions
of Cr.P.C. governing search and seizure have to be followed during the course
of search and.seizure under Section 4(d) and the property or arms, ammunitions,
etc. seized during the course of such search has to be· produced by the officer
C of the armed forces before the officer in charge of the nearest police station
with the least possible delay along with a report of the circumstances
occasioning such search and seizure.

Under Section 6 protection has been given to the persons acting under
the Central Act and it has been prescribed that no prosecution, suit or other
D legal proceeding shall be instituted against any person in respect of anything
done or purported to be done in exercise of the powers conferred by the said
Act except with the previous sanction of the Central Government. The
conferment of such a protection has been assailed on the ground that it
virtually provides immunity to persons exercising the powers conferred under
Section 4 inasmuch as it extends the protection also to "anything purported
E to be done in exercise of the powers conferred by this Act". It has been
submitted that adequate protection for members of armed forces from arrest
and prosecution is contained in Sections 45 and 197 Cr.P .C. and that a
separate provision giving further protection is not called for. It has also been
submitted that even if sanction for prosecution is granted, the person in
question would be able to plead a statutory defence in criminal proceedings
F under Sections 76 and 79 of the Indian Penal Code. The protection given
under Section 6 cannot, in our opinion, be regarded as conferment of an
immunity on the persons exercising the powers under the Central Act. Section
6 only gives protection in the form of previous sanction of the Central
Government before a criminal prosecution or a suit or other civil proceeding
G is instituted against such person. In so far as such protection against
prosecution is concerned, the provision is similar to that contained in Section
197 Cr.P.C. which covers an offence alleged to have been committed by a
public servant "while acting or purporting to act in the discharge of his
official duty''. Section 6 only extends this protection in the matter of institution
of a suit or other legal proceeding. In Matajog Dobey v. H.C. Bhari, [1955]
H 2 SCR 925, the validity of Section 197 of the Code of Criminal Procedure, 1898
NAG/\ PEOPLE'S MOVE. OF HUMAN RIGHTS v. U.0.1. [S.C. AGRAWAL, J] 509
(which was in pari materia with Section 197 of the Code of Criminal Procedure, A
1973) was challenged on the ground of violation of Article 14 of the Constitution
and it was urged that it vested an absolutely arbitrary power on the Government
to grant or withold sanction at their sweet will and pleasure, and the legislature
did not lay down or even indicate any guiding principles to control the
exercise of the discretion. Negativing the said contention this Court observed:
"It has to be borne in mind that a discretionary power is not necessarily a B
discriminatory power and that abuse of power is not to be easily assumed
where discretion is vested in the Government and not in a minor official".
[p.932] We, therefore, do not find any merit in the challenge to the validity
of Section 6. But, at the same time, we are of the view that since the order
of the Central Government refusing or granting the sanction under Section 6 C
is subject to judicial review, the Central Government shall pass an order giving
reasons.

Before we conclude the consideration of the questions regarding the
constitutional validity of the Central Act, we may refer to the grievance of the
petitioners that there has been wide spread abuse of powers conferred under D
the Central Act by the personnel of the armed forces while such forces were
deployed in the areas declared as 'disturbed areas' under the Central Act, In
the Writ Petitions reference has been made to a number of instances. Mrs.
Indira Jaisingh has also placed before us the reports of the Commission of
Inquiry headed by Shri Justice D.M. Sen, a retired Judge of Gauhati High
Court in respect .of some of those instances. On behalf of Union of India it E
has been submitted that an inquiry is made whenever any complaint about
mis-use of powers conferred under the Central Act is received and that on
enquiry most of the complaints were found to be false, and that whenever it
is found that there is substance in the complaint, suitable action has been
taken against the person concerned under the provisions of the Army Act. p
The learned Attorney General has placed before us instructions in the form
of a list of "Do's and Don'ts" that are issued by the Army Headquarters from
time to time. The instructions contained in the said list which must be
followed while acting under Armed Forces (Special Powers) Act, 1958 are in
these terms :-
"LIST OF DO'S AND DON'TS WHILE ACTING UNDER ARMED G
FORCES SPECIAL POWERS ACT, 1958
Dos.

I. Action before Operation.
(a) Act only in the area declared 'Disturbed Area' under Section 3 of H
510 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A the Act.

(b) Power to open fire using force or arrest is to be exercised under
this Act only by an officer/JCO/WO and NCO.

(c) Before launching any raid/search, definite information about the
B activity to be obtained from the local civil authorities.

(d) As far as possible co-opt representative of local civil administration
during the raid.

2. Action during Operation.

C (a) In case of necessity of opening fire and using any force against
the suspect or any person acting in contravention to law and order,
ascertain first that it is essential for maintenance of public order. Open
fire only after due warning.

(b) Arrest only those who have committed cognizable offence or who
D are about to commit cognizable offence or against whom a reasonable
· ground exists to prove that they have committed or are about to
. commit cognizable offence.

(c) Ensure that troops under command do not harass innocent people
destory property of the public or unnecessarily enter into the house/
E dwelling of people not connected with any unlawful activities. ·

(d) Ensure that women are not searched/arrested without.the presence
of female police. In fact women should be searched by female police
only.

F 3. Action after Operation.

(a) After arrest prepare a list of the persons so arrested.

· (b) Handover the arrested persons to the nearest Police Station with
least possible delay.
G
(c) While handing over to the police a report should accompany with
detailed circumstances occasioning the arrest.

(d) Every delay in handing over the suspects to the police must be
justified and should be reasonable depending upon the place, time of
t ' arrest and the terrain in which such person has been arrested. Least
H
NAGA PEOPLE'S MOVE. OF HUMAN RIGHTS v. U.0.L [S.C. AGRAWAL, J J 511

possible delay may be 2-3 hours extendable to 24 hours or so depending A .
upon a particular case.

(e) After raid make out a list of all anns, ammunition or any other
incriminating material/document taken into possession.

(f) All such anns, ammunition, stores etc. should be handed over to B
the Police Station alongwith the seizure memo.

(g) Obtain receipt of persons and anus/ammunition, stores etc. so
handed over to the police.

(h) Make record of the area where operation is launched having the
date and time and the persons participating in such raid. c
(i) Make a record of the commander and other officer/JCOs/NCOs
fonning part of such force.

(k) Ensure medical relief to any person injured during the encounter,
if any person dies in the encounter his dead body be handed over D
immediately to the police alongwith the details leading to such death.

4. Dealing with Civil Court.

(a) Directions of the High Court/Supreme Court should be promptly
attended to. E
(b) Whenever summoned by the courts, decorum of the court must be
maintained and proper respect paid.

(c) Answer questions of the court politely and with dignity.
F
(d) Maintain detailed record of the entire operation correctly and
explicitly.

Don'ts

I. Do not keep a person under custody for any period longer than G
the bare necessity for handing over to the nearest Police Station.

2. Do not use any force after having arrested a person except when
he is trying to escape.

3. Do not use third degree methods to extract information or to
extract confession or other involvement in unlawful activities. H
512 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A 4.. After arrest of a person by the member of the Armed forces, he
shall not be interrogated by the member of the Armed forces.

5. Do not release the person directly after apprehending on your
own. If any person is to be released, he must be released through civil
authorities.
B 6. Do not temper with official records.

7. The Armed Forces shall not take back a person after he is handed
over to civil police."

The instructions in the List of "Do' s and Don 'ts" which must be
c followed while providing aid to the civil authority are as under :-

"LIST OF DO'S AND DON'TS WHILE PROVIDING AID TO CIVIL
AUfHOR!TY.

DO'S
D
I. Act m closest possible communication with civil authorities
throughout.

2. Maintain inter-communication if possible by telephone/radio.

3. Get the permission/requisition from the Magistrate when present.
E 4. Use the little force and do as little injury to person and property
as may be consistent with attainment of objective in view.

5. In case you decide to open fire :-

(a) Give warning in local language that fire will be effective.
F (b) Attract attention before firing by bugle or other means.

(c) Distribute your men in fire units with specified Commanders.

(d) Control fire by issuing personal orders.

(e) Note number of rounds fired.
G
(f) Aim at the front of crowd actually rioting or inciting to riot or at
· conspicuous ring leaders, i.e., do not fire into the thick of the crowd
at the back.

(g) Aim low and short for effect.
H (h) Keep Light Machine Gun and Medium Gun in reserve.
NAGA PEOPLE'S MOVE. OF HUMAN RIGHTS v. U.0.1. [S.C. AGRAWAL, J.] 513

(i) Cease firing iminediately once the object has been attained. A
Ul Take immediate steps to secure wounded.
6. Maintain cordial relations with civilian authorities and Para Military
Forces.

7. Ensure high standard of discipline. B

Don'ts

8. Do not use excessive force.

9. Do not get involved in hand to hand struggle with the mob.
c
10. Do not ill treat any one, in particular, women and children.

11. No harassment of civilians.

12. No torture.

13. No communal bias while dealing with civilians.
D
14. No medding in civilian administration affairs.

15. No military disgrace by loss/surrender of weapons.

16. Do not accept presents, donations and rewards.

17. Avoid indiscriminate firing." E
The learned Attorney General has submitted that these instructions
provide an effective check against any misuse or abuse of the powers conferred
under the Central Act on an officer in the armed forces inasmuch as
contravention of these instructions is punishable under Sections 41, 42( e), 63
and 64(f) of the Army Act, 1950. F

In State of Uttar Pradesh v. Chandra Mohan Nigam & Ors., [1978] 1
SCR 521, this Court, while considering the validity of Rule 16(3) of the All
India Services (Death-cum-Retirement Benefits) Rules, 1958, which empowered
the Central Government to compulsorily retire a member of the All India G
Service, took note of the instructions issued by the Government and observed:-

"Since rule 16(3) itself does not contain any guidelines, directions or
criteria, the instructions issued by the Government furnish an essential
and salutary procedure for the purpose of securing uniformity in
application of the rule. These instructions really fill up the yawning H
514 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A gaps in the provisions and are embedded in the conditions of service.
These are binding on the Government and cannot be violated to the
prejudice of the Government servant." [p. 531]

In Supreme Court Advocates-On-Record Association & Ors. v. Union
of India, [ 1993] 4 SCC 441, one of us, Venn a J., as the learned Chief Justice
B then was, speaking for the majority, after pointing out that in actual practice,
the real accountability in the matter of appointments of superior Judges is of
the Chief Justice of India and the Chief Justices of the High Court and not
of the executive, has said :-

c "If that is the position in actual practice of the constitutional provisions
relating to the appointments of the superior Judges, wherein the
executive itself holds out that it gives primacy to the opinion of the
Chief Justice of India, and in the matter of accountability also it
indicates the primary responsibility of the Chief Justice of India, it
stands to reason that the actual practice being in confonnity with the
D consitutional scheme, should also be accorded legal sanction by
pennissible constitutional interpretation." [pp. 694-695]

The instructions in the form of "Do's and Don'ts" to which reference
has been made by the learned Attorney General have to be treated as binding
E instructions which are required to be followed by the members of the armed
forces exercising powers under the Central Act and a serious note should be
taken of violation of the instructions and the persons found responsible for
such violation should be suitably punished under the Army Act, 1950.

While considering the submissions assailing the validity of clauses (a)
F to (d) of Section 4 and Section 5, we have construed the said provisions as
containing certain safeguards against arbitrary exercise of power. In this
context, reference may also be made to the order dated July 4, 1991 passed
by this Court in Civil Appeal No. 2551 of 1991 wherein, after taking note of
the list of"Do's and Don'ts" referred-to-above, this Court gave the following
G direction :-

"The Army Officers while effecting the arrest of woman or making
search of woman or in searching the place in the actual occupancy
of a female shall follow the procedure meant for the police officers as
contemplated under the various provisions of the Code of Crimi;;al
H Procedure, namely, the proviso to sub-section (2) of Section 47, sub-
NAGA PEOPLE'S MOVE. OF HUMAN RIGHTS v. U.0.1. [SC. AGRAWAL, J ] 5J5
sections (2) of Section 51, sub-section (3) of Section 100 and proviso A
to sub-section ( 1) of Section 160 of the Code."

The safeguards against an arbitrary exercise of powers conferred under
Sections 4 and 5 as indicated above as well as the said direction should be
incorporated in the instructions contained in the list of "Do's and Don'ts"
and the instructions should be suitably amended to bring them in conformity B
with the guidelines contained in the decisions of this Court in this regard.

In order that the people may feel assured that there is an effective check
against misuse or abuse of powers by the members of the armed forces it is
-:: I necessary that a complaint containing an allegation about misuse or. abuse C
of the powers conferred 'under the Central Act should be thoroughly inquired
into and, if it is found that there is substance in the allegation, the victim
should be suitably compensated by the State and the requisite sanction under
Section 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. D

Having dealt with the submissions on the validity of the Central Act we
would now proceed to deal with the submissions on the validity of the State
Act. The challenge is confined to Sections 3 to 6 of the State Act. Section
3 contains the power to declare an area is a "disturbed area" and is similar E
to Section 3 of the Central Act. Section 4 contains provisions similar to those
contained in Section 4(a) of the Central Act. \he only difference is that the
powers under Sections 4 and 5 of the State Act are not conferred on an officer
of the armed forces but are conferred on any Magistrate or Police Officer not
below the rank of Sub-Inspector or Havildar in case of the Anned Branch of
the Police or any officer of the Assam Rifles not below the rank of Havildar/ F
Jamadar. The words "or any officer of the Assam Rifles not below the rank
of Havildar/Jamadar" have been struck down by the Delhi High Court in the
Judgment dated June 3, 1983 on the view that Assam Rifles are part of the
armed forces of the Union and the State Legislative is not competent to
legislate in that regard. Since no appeal has been filed by the State of Assam G
against the said part of the judgment of the Delhi High Court it has become
final. Section 6 contains protection regarding institution of prosecution and
a suit or other civil proceeding in the same terms as Section 6 of the Central
Act.

The construction placed by us on the provisions of Sections 3 and 6 H
516 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A of the Central Act and the reasons given for upholding the validity of the
same equallly apply to Sections 3 and 6 of the State Act and on the same
basis the said provisions of the State Act must be upheld as valid.

The validity of Sections 4 and 5 Qf the State Act has been assailed by
B Shri Goswami on the ground that they are inconsistent with the central
legislation on the same subject, viz., Criminal Procedure Code, 1973 and the
Arms Act, 1959 and that the State Act was, therefore, liable to be struck down
in view of the provisions of Article 254 of the Constitution. The validity of
Sections 4 and 5 is also assailed by Shri Goswami on the same grounds on
which the validity .of Sections 4(a) and 4(b) of the Central Act was assailed.
C The reasons given by us for· upholding the said provisions of the Central Act
would equally apply in so far as the said challenge to the validity of Sections
4 and 5 of the State Act is concerned.

As regards the submission of Shri Goswami that the provisions of
Sections 4 and 5 of the State Act are repugnant to the provisions contained
D in Cr.P.C. and the Arms Act, it may be said that in pith and substance the
State Act is a law enacted in exercise of powers under Entry 1 of List II
relating to public order. It is not a law enacted under any of the entries in the
Concurrent List (List Ill). The question of invalidity of the said provisions in
the State Act on the ground of being repugnant to a central legislation, e.g.,
E Cr.P.C., enacted under Entry 2 of List lil under Article 254 of the Constitution
does not, therefore, _arise and Sections 4 and 5 of the State Act cannot be
assailed on the ground that the same being repugnant to. the provisions of
Cr.P.C. are unconstitutional in view of Article 254 of the Constitution. The
contention of Shri Goswami that the provisions of Sections 4 and 5 of the
State Act are inconsistent with the provisions of Arms Act enacted by
F Parliament also cannot be accepted because the said provisions only provide
for effective enforcement of the provisions of the Arms Act in the disturbed
areas and it cannot be said that they, in any way, encroach upon the field
covered by the Arms Act. The challenge to the validity of Sections 4 and 5
of the State Act is, therefore, negatived.
G
As noticed earlier, the Gauhati High Court in its judgment dated March
20, 1991 (under challenge in Civil Appeals Nos. 2173-76 of 1991) has 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 ofDibrugarh, Tinsukia, Sibsagar, Jorhat, Nagaon,
H Dhemaji, Lakhimpur, Sonitpur, Barrang, Nalbari and Barpeta and also the city

f
NAGA PEOPLE'S MOVE. or HUMAN RIGHTS,. U.0.L [S.C AGRAWAL. J.] 517

of Guwhati and shall not apply in the districts of Golaghat, Morigaon, Dhubri, A
Kokrajhar, Bongaigaon, Goalpara, Kamrup (except the city ofGuwahati), Karbi
Anglong, North Cachar Hills, Cachar, Karimganj and Hallakandi. In taking the
said view the High Court has placed reliance on the Report sent by the
Governor of Assam to the President of India wherein he had expressed the
view that the Government of the State cannot be carried on in accordance
with the Constitution oflndia. On the basis of the said Report the High Court
B
has held that only certain districts are disturbed areas and since the Central
Government had stated that there is no other material except the Governor's
Report, there was no justification to declare other districts as disturbed areas
or any dangerous conditions under the Central Act. The High Court has,
therefore, held that there the notifications shall not apply in those districts. C
The learned Attorney General has submitted that the High Court was
in errror in striking down the notification dated November 27, 1990 in its
application to rest of the districts. Placing reliance on the decision of Special
Bench of this Court in SR. Bommai v. Union of India, (1994] 3 SCC I, the
learned Attorney General has urged that in exercise of the power of judicial D
review in respect of a notification issued under Section 3 of the Central Act
it was not open to the High Court to assess the material on the basis of which
the Central Government formed the opinion for the purpose of making a
declaration under Section 3 of the Central Act. All that the High Court could
see is whether the material on the basis of which the opinion is formed is E
relevant but the Court could not go into the sufficiency of that material. We
find merit in the aforesaid submission of the learned Attorney General. We
have carefully perused the Report sent by the Governor of Assam. On the
basis of the said Report it cannot be said that the districts which have been
excluded from the notification by the High Court could not be declared as
"disturbed areas" inasmuch as in his Report the Governor has referred to the F
entire State of Assam and has said :-

''Apart from killings, according to reports received, many people were
kidnapped and released after the ransom was paid. The extortion, to
begin with, was on a limited scale. Magnitude of loot and plunder,
however, became colossal in due course of time, presumably in view G
of the State Government's failure to act."

The Governor has mentioned that the districts of Tinsukia, Dibrugarh,
Sibsagar, lorhat and Nagaon on the South Bank of Brahmaputra and those
of Dhemaji, Lakhimpur, Sonitpur, Darrang, Nalbari and Barpeda on the North
Bank of Brahmaputra are the worst sufferers. But that does not mean that H
518 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A other areas were not affected. In th~ concluding part of his Report the
Governor has said :-

"The. Cumulative consequence of all this is that the entire State is
gripped by a fear psychosis. The holders of public offices have been
rendered totally ineffective. The statutory' authorities are in a state of
B panic incapable of discharging their functions: The holders of
constitutional officers stand totally emasculated so much so that the
State Cabinet cannot even discuss the situation."

"The loss of faith in the efficacy and the credibility of the Government
apparatus is so great that the thin distinction between ULFA, AASU
c and AGP which existed at some stage, stands totally obliterated.
Glooms hangs over the whole State. By the fall of the dusk, the people
are huddled in their homes. Nobody's life, limb, property or honour
is safe. The basic attributes of a civilised and orderly society stand
annihilated."

D It cannot, therefore, be said that there was no material before the Central
Government on the basis of which it could form the requiste opinion for the
purpose of making a declaration under Section 3 of the Central Act covering
the entire State of Assam. The impugned direction given by the High Court
that the notifications dated November 27, 1990 issued under Section 3 of the
E Central Act shall not apply to the districts aforementioned cannot, therefore,
be sustained and has to be set aside.

In support of the notification dated December 7, 1990 issued under
Section 3 of the State Act the State Government had relied upon the intelligence
reports that were received by the State Government with regard to prevailing
F conditions. The High Court has, however, struck down the said notification
in relation to the districts aforementioned for the reason that the notification
issued by the Central Government under the Central Act was being struck
down in respect of those districts and the notification of the State Government
could not also be sustained in respect of those districts. In the circumstances
G we art unable to uphold the direction of the High Court [direction No. (i)) that
notification dated November 27, 1990 issued under the Central Act and
notification dated December 7, 1990 issued under the State Act shall apply
not in the districts of Golaghat, Morigaon, Dhubri, Kakrojhar, Bongaigaon,
Goal para, Kamrup (except the city of Gauhati), Karbi Angiong, North Cachar
Hills, Cachar, Karimganj and Hailakandi and the said direction is, therefore, set
H aside.
NAGA PEOPLE'S MOVE. OF HUMAN RIGHTS v. U.0.1. [SC AGRAWAL. J] 519
The High Court has also directed [direction No. (ii)] that the Central A
Government, under the Central Act, and the State Government, under the
State Act, should review every calendar month whether the two notifications
are necessary to be continued. In the context of Section 3 of the Central Act
we have considered this question and have expressed the view that such
periodic review should take place before the expiry of six months. The said B
requirement for a periodic review would also apply to a notification issued
under Section 3 of the State Act. In the circumstances, we are unable to
uphold this direction given by the High Court.

\ The other direction [direction No. (iii)] given by the High Court is that
the Central Government and the State Government should issue following C
instructions to the officers who have been conferred the powers under the
Central Act and State Act :-

(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 D
24 hours from the time of arrest.

(b) a person who either had committed a cognizable or against whom
reasonable suspicion exists such person 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'. E
The said direction is in consonance with the construction placed by us
on the provisions of Sections 4( c) and 5 of the Central Act and the same is,
therefore, upheld. Civil Appeal Nos. 2173-76 of 1991 have, therefore, to be
allowed to the extent that the directions Nos. (i) and (ii) given by the High
Court in the impugned judgment are set aside. F

In the light of the above discussion we arrive at the following
conclusions :-

(l) Parliament was competent to enact the Central Act in exercise of G
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 flows from Entry 2A of
List I. It is not a law in respect of maintenance of public order falling
under Entry I of List II. H
520 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A (2) The expression "in aid of the civil power" in. Entry 2A of List I
and Entry I of List II 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.
-B
(3) 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 continue to function.

(4)The power to make a law providing for deployment of the armed
c forces of the Union in aid of the civil power of a State does not
include within its ambit 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. The armed forces of the Union would
operate in the State concerned in co-operation with the civil
D administration so that the situation which has necessitated the
deployment of armed forces is effectively dealt with and nonnalcy is
restored.

(5) The Central Act does not displace the civil power of the State by
the armed forces of the Union and it only provides for deployment of
E armed forces of the Union in aid of the civil power.

(6)The Central Act cannot be regarded as a colourable legislation or
a fraud on the Constitution. It is not a measure intended to achieve
the same result as contemplated by a Proclamation of Emergency
under Article 352 or a proclamation under Article 356 of the
F Constitution.

(7) Section 3 of the Central Act does not confer an arbitrary or
unguided power to declare an area as a "disturbed area". For declaring
an area as a "disturbed area" under Section 3 there must exist a grave
situation of law and order on the basis of which the Governor/
G Administrator of the State/Union Territory of the Central Government
can form an opinion that the area is in such a disturbed or dangerous
condition that the use of the anned forces in aid of the civil power
is necessary.

(8) A declaration under Section 3 has to be for a limited duration and
H there should be periodic review of the declaration before the expiry
NAGA PEOPLE'S MOVE. OF HUMAN RIGHTS v. U.0.L [S.C. AGRAWAL, J] 521

of six months. A
(9) Although a declaration under Section 3 can be made by the Central
Government suo moto without consulting the concerned State
Government, but it is desirable that the State Government should be
consulted by the Central Government while making the declaration.

(10) The conferment of the power to make a declaration under Section
B
3 of the Central Act on the Governor of the State cannot be regarded
as delegation of the power of the Central Government.

( 11) The conferment of the power to make a declaration under section
3 of the Central Act on the Central Government is not violative of the C
federal scheme as envisaged by tfie Constitution.

(12) The provisions contained in Sections 130 and 131 Cr.P.C. cannot
be treated as comparable and adequate to deal with the situation
requiring the use of armed forces in aid of civil power as envisaged
~~~~Act. D
(13) The powers conferred under clauses (a) to (d) of Section 4 and
Section 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 the provisions of Articles 14,
19 or 21 of the Constitution.
E
(14) While exercising the powers conferred under Section 4(a) of the
.,
Central Act, the officer in the armed forces shall use minimal force
required for effective action against the person/persons acting in
contravention of the prohibitory order.

(15) A person arrested and taken into custody in exercise of the
F
powers under Section 4(c) of the Central Act should be handed over
to the officer-in-charge of the nearest police station with least possible
delay so that he can be produced before nearest magistrate within 24
hours of such arrest excluding the time taken for journey from the
place of arrest to the Court of Magistrate. G
(16) The property or the arms, ammunitions, etc : seized during the
course of search conducted under Section 4( d) of the Central Act
must be handed over to officer-in-charge of the nearest police station
together with a report of the circumstances occasioning such search
and seizure. H
522 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A (17) The provisions of Cr.P.C. governing search and seizure have to
be followed during the course of search and seizure conducted in
exercise of the powers conferred under Section 4(d) of the Central
Act.

( 18) Section 6 of the Central Act in so far as it confers a discretion
B 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.
Since the order of the Central Government refusing or granting the
sanction under section 6 is subject to judicial review, the Central
c Government shall pass an order giving reasons.

(19) While exercising the powers conferred under clauses (a) to (d) of
Section 4 the officers of the armed forces shall strictly follow the
instructions contained in the list of "Do's and Don'ts" issued by the
army authorities which are binding and any dis-regard to the said
D
instructions would entail suitable action under the Army Act, 1950.

(20) The instructions contained in the list of' 'Do's and Don 'ts'' shall }
be suitably amended so as to bring them in conformity with the
guidelines contained in the decisions of this Court and to incorporate
E the safeguards that are contained in clauses (a) to (d) of Section 4 and
Section 5 of the Central Act as construed and also the direction
contained in the order of this court dated July 4, 1991 in Civil Appeal
No. 2551of1991.

(21) A complaint containing an allegation about misuse or abuse of
p the powers conferred under the Central Act shall be thoroughly inquired
into and, if on enquiry it is found that the allegations are correct, the
victim should be suitably compensated and the necessary sanction
for institution of prosecution and/or a suit or other proceeding should
be granted under Section 6 of the Central Act.

G (22) The State Act is, in pith and substance, a law in respect of
maintenance of public order enacted in exercise of the legislative
power conferred on the State Legislature under Entry I of List II.

(23) The Expression "or any officer of the Assam Rifles not below the
rank of Havildar" occurring in Section 4 and the expression "or any
H officer of the Assam Rifles not below the rank of Jamadar" in Section
NAGA PEOPLE'S MOVE. OF HUMAN RIGHTS 1·, U.0.1. [S.C. AGRAWAL, J.j 523. ·
5 of the State Act have been rightly held to be unconstitutional by A
the Delhi High Court since Assam Rifles are a part ofthe arm~d forces
of the Union and the State Legisiature in exercise of its power under·
Entry l of 1,.,ist II was not competent to enact a law in relation to. armed
forces of the Union.

(24) The rest of the provisions of Sections 4 and 5 of the State Act B
are not open to challenge under Article 254 of the Constitution on the
ground of repugnance to the provisions contained in Cr.P.C. and the
Arms Act.

(25) Thi: considerations governing the exercise of the powers conferred
under Sections 3 to 6 of. the Central Act indicated above will also. C
apply to exercise of powers co,nferred under Sections 3 to 6 of the
State Act.

(26) The directions Nos. (i) and (ii) given by the Gauhati High Court
in its judgment dated March 20, 1991 cannot be sustained and. must
~sctuide. D
In the result, Civil Appeals Nos. 721 ·24 of 1985 filed against the judgment
of Delhi High Court are dismissed, Civil Appeals Nos. 2173-76of1991 filed
against the judgment of the Gauhati High Court are allowed to the extent
indicated above arid Civil Appeal No . .2551 of 1991 filed against the said
judgment is dismissed. Writ Petitions Nos. 550 of 19.82, 5328 of 1980, 9229· E
30 of 1982 and 13644-45 of 1984 will stand disposed of in terms of this
judgment. No order as to costs.

S.M. Appeals/Petitions disposed: