Naga Peoples Movement of Human Rights Vs Union of s980906COM61095

MANU/SC/0906/1998
Equivalent/Neutral Citation: AIR1998SC 431, 1998(1)ALD(C ri)220, 1997 (Suppl.) AC C 162, JT1997(9)SC 431, 1997(7)SC ALE210,
(1998)2SC C 109, [1997]Supp5SC R469
IN THE SUPREME COURT OF INDIA

Writ Petition (Crl.) No. 550 of 1982 with WP (C) Nos. 5328 of 1980, 9229-30 of 1982
and 13644-45 of 1984, CA Nos. 721 to 724 of 1985 and 2173-76 and 2551 of 1991
Decided On: 27.11.1997
Appellants: Naga People's Movement of Human Rights
Vs.
Respondent: Union of India (UOI)
Hon'ble Judges/Coram:
J.S. Verma, C.J., M.M. Punchhi, S.C. Agrawal, Dr. A.S. Anand and S.P. Bharucha, JJ.
Counsels: Ashok H. Desai, Attorney General, M.S. Usgaocar, Additional Solicitor
General, Kapil Sibal, Amicus Curiae, Indira Jaising, Prashant K. Goswami, Shanti
Bhushan, S.N. Choudhury and Rajeev Dhawan, Senior Advs., S.R. Bhat, Rakesh Shukla,
Neeru Vaid, Lalit Mohan Bhat, Naveen R. Nath, Hetu Arora Sethi, Anitha Shenoy, Anita
George, P.H. Parekh, N.K. Sahoo, Deepa Pravir Choudhary, Renu George, M.K. Giri, S.C.
Jain, P. Parmeswaran, Anil Katiyar, Pallav Shishodia, Wasim A. Qadri, Anu Bindra,
Krishnan Venugopal, S.A. Syed, S.K. Nandy, Ranjan Mukherjee, Kailash Vasdev, C.K.
Sasi, Sunil Kumar Jain, Vijay Hansaria, Jatinder Kumar Bhatia, Navin Prakash, S. Janani,
S.K. Bhattacharya and R.S. Sodhi, Advs
JUDGMENT
S.C. Agrawal, J.
1 . These writ petitions and appeals raise common questions relating to the validity of
the Armed Forces (Special Powers) Act, 1958 (as amended) enacted by Parliament
(hereinafter referred to as 'the Central Act') and the Assam Disturbed Areas Act, 1955
enacted by the State Legislature of Assam (hereinafter referred to as 'the State Act').
2. The Central Act was enacted in 1958 to enable certain special powers to be conferred
upon the members of the armed forces in the disturbed areas in the State of Assam and
the Union Territory of Manipur. By Act 7 of 1972 and Act 69 of 1985 the Central Act was
amended and it extends to the whole of the State of Arunachal Pradesh, Assam,
Manipur, Meghalya, Mizoram, Nagaland and Tripura. The expression "disturbed area"
has been defined in Section 2(b) to mean an area which is for the time being declared
by notification under Section 3 to be a disturbed area. Section 3 makes provision for
issuance of a notification declaring the whole or any part of State or Union Territory to
which the Act is applicable to be a disturbed area. In the said provision, as originally
enacted, the power to issue the notification was only conferred on the Governor of the
State or the Administrator of the Union Territory. By the Amendment Act of 1972 power
to issue a notification under the said provision can also be exercised by the Central
Government. Under Section 4 a Commissioned Officer, Warrant Officer, Non-
Commissioned Officer or any other person of equivalent rank in the armed forces has
been conferred special powers in the disturbed areas in respect of matters specified in
Clauses (a) to (d) of the said section. Section 5 imposes a requirement that a person
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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 prosecution , suit or other legal proceeding shall be instituted, except
with the previous sanction of the Central Government, against any person in respect of
anything done or purported to be done in exercise of the powers conferred by the Act.
3. The State Act was enacted with a view to make better provision for the suppression
of disorder and for restoration and maintenance of public order in the disturbed areas in
Assam. Section 2 of the State Act also defines disturbed area to mean an area which is
for the time being declared by notification under Section 3 to be a disturbed area.
Section 3 lays down that the State Government may, by notification in the official
gazette of Assam, declare the whole or any part of any district of Assam, as may be
specified in the notification, to be a disturbed area. Sections 4 and 5 confer on a
Magistrate or Police Officer not below the rank of Sub-Inspector or Havildar in case: of
Armed Branch of the Police 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.
4 . C.A. Nos. 721-724 of 1985 arise out of the writ petitions [Civil Rule Nos. 182 of
1980, 192 of 1980 and 203 of 1980] filed in the Gauhati High Court.
5. In Civil Rule Nos. 182 of 1980 and 192 of 1980 the validity of the Central Act as well
as the State Act and the notifications dated April 5, 1980 issued thereunder were
challenged, while in Civil Rule No. 203 of 1980 the proclamation dated December 14,
1979 issued by the President under Article 356 of the Constitution and the Assam
Preventive Detention Ordinance, 1980 were challenged. In Civil Rule No. 182 of 1980 a
learned Single Judge of the High Court passed an ex-parte order staying the notification
dated April 5, 1980 issued by the Government of Assam under the Central Act. An
appeal was filed against the said order of the learned Single Judge before the Division
Bench of the High Court. All these three Civil Writ Petitions and the appeal were
transferred to the Delhi High Court by this Court and were registered as Civil Writ
Petitions Nos. 832-34 of 1980 and L.P.A. No. 108 of 1990 in the Delhi High Court. All
these matters were disposed of by a Division Bench of the said High Court by judgment
dated June 3, 1983. The High Court has observed that in C.W.P. No. 834/80 [Civil Rule
No. 203 of 1980] the challenge was to the validity of the Assam Prevention Detention
Ordinance, 1980, which had been replaced by Assam Preventive Detention Act, 1980
and the validity of the said Act had not been challenged. The said Writ Petition was,
therefore, dismissed on the ground that it will be an exercise in futility to deal with the
vires of the Ordinance. As regards L.P.A. No. 108 of 1980 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. 832-33 of 1980 on merits. The
High Court has upheld the validity of the Central Act and has held that Parliament was
competent to enact the Central Act in exercise of statutory power conferred under
Entries 1 and 2 of List I read with Article 246 of the Constitution. The High Court has
also held that the provisions of the Central Act cannot be held to be violative of Articles
14, 19 and 21 of the Constitution. As regards the State Act the High Court has held that
the Assam Rifles is a part and parcel of other armed forces of Union of India as
postulated in Entry 2 of List I of the Constitution and the State Legislature of Assam
could not legislate with regard to Assam Rifles. Sections 4 and 5 of the State Act, to the
extent they confer certain powers on the personnel of Assam Rifles, have been held to
be beyond the legislative power of the State Legislature and the words "or any officer of

the Assam Rifles not below the rank of Havildar" in Section 4 and the words "or any
officer of the Assam Rifles not below the rank of Jamadar" in Section 5 of the State Act
have been struck down and rest of the provisions of the State Act have been upheld.
The declarations issued by the Governor of Assam under Section 3 of the Central Act
and Section 3 of the State Act have also been upheld by the Act. Civil Appeals Nos. 721-
24 of 1985 have been filed by the petitioners in the writ petitions against the said
judgment of the Delhi High Court. The State of Assam has not filed any appeal against
the decision of the High Court striking down the aforementioned words in Sections 4
and 5 of the State Act.
6. Civil Rule Nos. 2314, 2238 & 2415 of 1990 and Civil Rule No. 11 of 1991 were filed
in the Gauhati High Court wherein proclamation dated November 27, 1990 promulgated
by the Government of India under Article 356 of the Constitution as well as declaration
dated November 27, 1990 issued under Section 3 of the Central Act and declaration
dated December 7, 1990 issued under Section 3 of the State Act were challenged. In
these Writ Petitions the validity of the Central Act as well as the State Act was also
challenged. All these Writ Petitions were disposed of by a Division Bench of the Gauhati
High Court by judgment dated March 20, 1991. Since the Proclamation dated November
27, 1990 issued under Article 356 of the Constitution of India had expired during the
pendency of the writ petitions the High Court observed that the relief sought in that
regard had become infructuous. The High Court has held that the questions regarding
the validity of the Central Act and the State Act were concluded by the earlier judgment
of the Delhi High Court and the same cannot be reopened. Taking note of the report of
the Governor of Assam to the President of India which led to the Proclamation under
Article 356 of the Constitution the High Court has held that only some of the districts in
the State of Assam as mentioned in the said report could be declared as disturbed
areas. The High Court has, therefore, directed that notification dated November 27,
1990 issued under the Central Act and notification dated December 7, 1990 issued
under the State Act shall apply only in respect of the districts of Dibrugarh, Tinsukia,
Sibasagar, Jorhat, Nagaon, Dhemaji, Lakhimpur, Sonitpur, Darrang, Nalbari, Barpeta
and the city of Gauhati and shall not apply in the districts of Golaghat, Morigaon,
Dhubri, Kokrajhar, Bongaigaon, Goalpara, Kamrup (except the city of Gauhati), Karbi
Anglong, North Cachar Hills, Cachar, Karimganj and Hailakandi. The High Court has also
directed the Central Government under the Central Act and the State Government under
the State Act to review every calendar month whether the two notifications are
necessary to be continued. The High Court has also directed that legal points decided by
the High Court in the earlier decisions in Nungshi Tombi Devi v. Rishang Keishang
MANU/GJ/0141/1982 : (1982)1GLR756 , and The Civil Liberties and Human Rights
Organisations (CLAHRO) v. P.K. Kukrety, (1988) 2 GLR 137, be made known to
Commissioned Officers, Non-Commissioned Officers, Warrant Officer, and Havildars and
has further directed the Central Government and Government of Assam to issue the
following instructions to the above-mentioned officers :-
(a) Any person arrested by the armed forces or other armed forces of the Union
shall be handed over to the nearest police station with least possible delay and
be produced before the nearest Magistrate within 24 hours from the time of
arrest.
(b) A person who either had committed a cognizable offence or against whom
reasonable suspicion exists such persons alone are to be arrested, innocent
persons are not to be arrested and later to give a clean chit to them as is being
'white'.

7. Civil Appeals Nos. 2173-76 of 1991 have been filed by the Union of India, the State
of Assam and other respondents in the writ petition against the said judgment of the
Gauhati High Court dated March 20, 1991 in Civil Rules Nos. 2314, 2238 & 2415 of
1990. Civil Appeal No. 2551 of 1991 has been filed by the petitioner in Civil Rule No. 11
of 1991 against the said judgment. The appellant in the Civil Appeal No. 2551 of 1991
has died and the said appeal has abated.
8 . 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. In these writ petitions allegations have been made regarding infringement
of human rights by personnel of armed forces in exercise of the powers conferred by
the Central Act. The notifications regarding declaration of disturbed areas have ceased
to operate. The allegations involving infringement of rights by personnel of armed
forces have been inquired into and action has been taken against the persons found to
be responsible for such infringements. The only question that survives for consideration
in these writ petitions is about the validity of the provisions of the Central Act and the
State Act.
9. We have heard Shri Shanti Bhushan, Ms. Indira Jaisingh, Shri Kapil Sibal on behalf
of the petitioners in the writ petitions and in the civil appeals we have heard Shri P.K.
Goswami on behalf of the petitioners in the writ petitions filed in the High Court. The
learned Attorney General has addressed the Court on behalf of the Union of India. The
National Human Rights Commission has been permitted to intervenes and Shri Rajiv
Dhawan has addressed the Court on its behalf.
10. As noticed earlier, the provisions contained in the State Act are also found in the
Central Act which contains certain additional provisions. The submissions on the validity
of the provisions of the Central Act would cover the challenge to the validity of the State
Act. We would, therefore, first deal with the questions relating to the validity of the
Central Act. But before we do so we will briefly take note of the earlier legislation in the
field.
11. The Police Act of 1861, in Sub-section (1) of 15, empowers the State Government
to issue a proclamation declaring that any area subject to its authority has been found
in a disturbed or in a dangerous state and thereupon in exercise of the power conferred
under Sub-section (2) the Inspector General of Police or other officer authorised by the
State Government 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 (1) shall indicate the period for which it is to remain in force, but it may be
withdrawn at any time or continued from time to time for a further period or periods as
the State Government may in each case think fit to direct. The Police Act makes no
provision for deployment of armed forces.
12. To deal with the situation arising in certain provinces on account of the partition of
the country in 1947 the Governor General issued four Ordinances, namely, (1) The
Bengal Disturbed Areas (Special Power of Armed forces) Ordinance, 1947 (11 of 1947);
(2) The Assam Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947 (14
of 1947); (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 (22 of 1947). These Ordinances
were replaced by the Armed Forces (Special Powers) Act, 1948 (Act No. 3 of 1948).

Sections 2 and 3 of the Act provided as follows :
"Section 2. Special powers of officers of military or air forces: - Any
commissioned officer, warrant officer or non commissioned officer of His
Majesty's military or air forces may, in any area in respect of which a
Proclamation under Sub-section (1) 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 Government under any other law to be a
disturbed or dangerous area,
(a) If in his opinion it is necessary so to do for the maintenance of
public order, after giving such warning, if any, as he may consider
necessary, fire upon or otherwise use force, even to the causing of
death, against any person who is acting in contravention of any law or
order for the time being in force in the said area prohibiting the
assembly of five or more persons or the carrying of weapons or of
things capable of being used as weapons;
(b) arrest without warrant any person who has committed a cognizable
offence, or against whom a reasonable suspicion exists that he has
committed or is about to commit a cognizable offence;
(c) enter and search, without warrant, any premises to make any such
arrest as aforesaid, or to recover any person believed to be wrongfully
restrained or confined, or any property reasonably suspected to be
stolen property, or any arms believed to be unlawfully kept, in such
premises.
Section 3. Protection of persons acting under this Act:- No prosecution, suit or
other legal proceeding shall be instituted, except with the previous sanction of
the Central Government, against any person in respect of anything done or
purporting to be done in exercise of the powers conferred by Section 2."
13. This Act was a temporary statute enacted for a period of one year. It was, however,
continued till it was repealed by Act 36 of 1957.
14. Thereafter the Central Act was enacted by Parliament. It was known as the Armed
Forces [Assam and Manipur] Special Powers Act, 1958 and it extended to the whole of
the State of Assam and the Union Territory of Manipur. As a result of the amendments
made therein it is now described as the Armed Forces [Special Powers] Act, 1958 and it
extends to the whole of the State of Arunachal Pradesh, Assam, Manipur, Meghalaya,
Mizoram, Nagaland and Tripura. Under Section 3 of the Act as originally enacted the
power to declare an area to be a disturbed area was conferred on the Governor of
Assam and the Chief Commissioner of Manipur. Section 3 was amended by Act 7 of
1972 and power to declare an area to be a 'disturbed area' has also been conferred on
the Central Government. In the Statement of Objects and Reasons of the Bill which was
enacted as Act 7 of 1972 the following reason is given for conferring on the Central
Government the power to make a declaration under Section 3 :-
"The Armed Forces [Assam and Manipur] Special Powers Act, 1958, empowers
only the Governors of the States and the Administrators of the Union Territories
to declare areas in the concerned State or Union Territory as "disturbed".
Keeping in view the duty of the Union under Article 355 of the Constitution,
inter alia, to protect every State against internal disturbance, it is considered

desirable that the Central Government should also have power to declare areas
as "disturbed" to enable its armed forces to exercise the special powers."
15. The relevant provisions of the Central Act are as under :-
2. Definitions.- In this Act, unless the context otherwise requires,-
xxx
(b) "disturbed area" means an area which is for the time being declared by
notification under Section 3 to be a disturbed area;
xxx
3. Power to declare areas to be disturbed areas,- If, in relation to any State or
Union Territory to which this Act extends, the Governor of that State or the
Administrator of that Union Territory or the Central Government, in either case,
is of the opinion that the whole or any part of such State or Union Territory, as
the case may be, is in such a disturbed or dangerous condition that the use of
armed forces in aid of the civil power is necessary, the Governor of that State
or the Administrator of the Union Territory or the Central Government, as the
case may be, may, by notification in the Official Gazette, declare the whole or
such part of such State or Union Territory to be a disturbed area.
4 . Special powers of the armed forces- Any Commissioned Officer, Warrant
Officer, Non-Commissioned Officer or any other person of equivalent rank in
the armed forces may, in a disturbed area,-
(a) if he is of opinion that it is necessary so to do for the maintenance
of public order, after giving such due warning as he may consider
necessary fire upon or otherwise use force, even to the causing of
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 of
things capable of being used as weapons or of fire-arms, ammunition
or explosive substances;
(b) if he is of opinion that it is necessary so to do, destroy any arms
dump, prepared or fortified position or shelter from which armed
attacks are made or are likely to be made or are attempted to be made,
or any structure used as training camp for armed volunteers or utilised
as a hide-out by armed gangs or absconders wanted for any offence;
(c) arrest, without warrant, any person who has committed a
cognizable offence or against whom a reasonable suspicion exists that
he has committed or is about to commit a cognizable offence and may
use such force as may be necessary to effect the arrest;
(d) enter and search without warrant any premises to make any such
arrest as aforesaid or to recover any person believed to be wrongfully
restrained or confined or any property reasonably suspected to be
stolen property or any arms, ammunition or explosive substances
believed to be unlawfully kept in such premises, and may for that
purpose use such force as may be necessary.

5 . Arrested persons to be made over to the police.- Any person arrested and
taken into custody under this Act shall be made over to the officer in charge of
the nearest police station with the least possible delay, together with a report of
the circumstances occasioning the arrest.
6 . Protection to persons acting under Act.- No prosecution, suit or other legal
proceeding shall be instituted, except with the previous sanction of the Central
Government against any person in respect of anything done or purported to be
done in exercise of the powers conferred by this Act."
16. In addition to the powers conferred under the Act, provision is made for use of
armed forces in the following provisions contained in Sections 130 and 131 of the
Criminal Procedure Code, 1973 (for short Cr. P.C.) :-
"Section 130. Use of armed forces to disperse assembly.- (1) If any such
assembly cannot be otherwise dispersed, and if it is necessary for the public
security that it should be dispersed, the Executive Magistrate of the highest
rank who is present may cause it to be dispersed by the armed forces.
(2) Such Magistrate may require any officer in command of any group of
persons belonging to the armed forces to disperse the assembly with the help
of the armed forces under his command, and to arrest and confine such persons
forming part of it as the Magistrate may direct, or as it may be necessary to
arrest and confine in order to disperse the assembly or to have them punished
according to law.
(3) Every such officer of the armed forces shall obey such requisition in such
manner, as he thinks fit, but in so doing he shall use as little force, and do as
little injury to person and property, as may be consistent with dispersing the
assembly and arresting and detaining such persons.
Section 131. Power to certain armed force officer to disperse assembly.- When
the public security is manifestly endangered by any such assembly and no
Executive Magistrate can be communicated with, any Commissioned or Gazetted
Officer of the armed forces may disperse such assembly with the help of the
armed forces under his command, and may arrest and confine any persons
forming part of it, in order to disperse such assembly or that they may be
punished according to law, but if, while he is acting under this section, it
becomes practicable for him to communicate with an Executive Magistrate, he
shall do so, and henceforward obey the instructions of the Magistrate, as to
whether he shall or shall not continue such acting."
17. Provision on the same lines were contained in Sections 129 to 131 of the Criminal
Procedure Code, 1898.
18. In this context, it may be mentioned that under Section 23(1) of the Reserve Force
Act, 1980 in England power has been conferred on the Secretary of the State, at any
time when occasion appears to require, to call out the whole or so many as he thinks
necessary, of the members of the Army or Air Force Reserve to aid the civil power in the
preservation of the public peace. In Sub-section (2) of Section 23 of the said Act it is
provided that for the same purpose, on the requisition in writing of a justice of the
peace, any officer commanding her Majesty's forces or the regular air force in any town
or district may call out the men of the Army 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 III, 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 his immediate superior service authority
and the Ministry of Defence, but if, in very exceptional circumstances, a grave and
sudden emergency arises which, in the opinion of the commander present, demands his
immediate intervention to protect life and property, he must act on his own
responsibility, and report the matter as soon as possible to the chief officer of police
and to the service authorities. [See : Halsbury's Laws of England. Fourth Edition, Vol.
41, pp. 27-28, para 25].
19. The learned counsel for the petitioners in the writ petitions filed in this Court as
well as in the writ petitions filed in the High Court and the learned counsel for the
Intervenor have assailed the validity of the Central Act on the ground that it is beyond
the legislative competence of Parliament. They have also challenged the validity of the
various provisions of the Act on the ground that the same are violative of the provisions
of Articles 14, 19 and 21 of the Constitution. We would first examine the submissions of
the learned counsel regarding legislative competence of Parliament to enact the Central
Act. For that 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.
20. Prior to the Constitution (Forty-Second Amendment) Act, 1976, the relevant entries
were as follows :-
"List I-Union List, Entry 2. Naval, military and air forces, any other armed
forces of Union.
List II-State List, Entry 1. Public order (but not including the use of naval,
military or air force or any other armed force of the Union in aid of the civil
power)."
21. By the Constitution (Forty-Second Amendment) Act, 1976, Entry 2A was inserted in
the Union List. The said entry reads as follows :-
"2A. Deployment of any armed force of the Union or any other force subject to
the control of the Union or any contingent or unit thereof in any State in aid of
the civil power, powers, jurisdiction, privileges and liabilities of the members of
such forces while on such deployment."
22. Entry 1 of the State List was amended to read as under:-
"Public order (but not including the use of any naval, military or air force or any
other armed force of the Union or of any other force subject to the control of
the Union or of any contingent or unit thereof in aid of civil power."
23. By the said amendment Article 257A was also inserted which was in the following
terms :-
"Article 257A. Assistance to States by deployment of armed forces or other
forces of the Union.-(1) The Government of India may deploy any armed force
of the Union or any other force subject to the control of the Union for dealing
with any grave situation of law and order in any State.
(2) Any armed force or other force of any contingent or unit thereof deployed
under Clause (1) in any State shall act in accordance with such directions as the

Government of India may issue and shall not, save as otherwise provided in
such directions, be subject to the superintendence or control of the State
Government or any officer or authority subordinate to the State Government.
(3) Parliament may, by law, specify the powers, functions, privileges and
liabilities of the members of any force or any contingent or unit thereof
deployed under Clause (1) during the period of such deployment."
24. Article 257A was deleted by the Constitution (Forty-Forth Amendment) Act, 1976
but no change was made in Entry 2A of the Union List.
25. While examining the legislative competence of Parliament to make a law what is
required to be seen is whether the subject matter falls in the State List which Parliament
cannot enter. If the law does not fall in the State List, Parliament would have legislative
competence to pass the law by virtue of the residuary powers under Article 248 read
with Entry 97 of the Union List and it would not be necessary to go into the question
whether it falls under any entry in the Union List or the Concurrent List. [See : Union of
India v. H.S. Dhillon, MANU/SC/0062/1971 : [1972]83ITR582(SC) ; S.P. Mittal v. Union
of India, : [1983]1SCR729 and Kartar Singh v. State of Punjab, : 1994CriL J3139 . What
is, therefore, required to be examined is whether the subject matter of the Central Act
falls in any of the entries in the State List. The submission of the learned counsel for
the petitioners and the Intervenor is that the Central Act is a law with respect to "Public
Order" and falls under Entry I of the State List. The learned Attorney General of India
has, on the other hand, submitted that the Central Act does not fall under any entry in
the State List and, as originally enacted in 1958, it was a law made under Article 248
read with Entry 97 of the Union List and after the Forty-Second Amendment of the
Constitution it is a law falling under Entry 2A of the Union List.
2 6 . Shri Shanti Bhushan has urged that under Entry 1 of the State List the State
Legislature has been conferred the exclusive power to enact a law providing for
maintenance of public order. This power does not, however, extend to the use of armed
forces in aid of the civil power and that Parliament has been empowered to make a law
in that regard and this position has been made explicit by Entry 2A of the Union List.
The submission is that the use of the armed forces in aid of the civil power
contemplates the use of armed forces under the control, continuous supervision and
direction of the executive power of the State and that Parliament can only provide that
whenever the executive authorities of a State desire, the use of armed forces in aid of
the civil power would be permissible but the supervision and control over the use of
armed forces has to be with the civil authorities of the State concerned. It has been
urged that the Central Act does not make provision for use of armed forces in aid of the
civil power in this sense and it envisages that as soon as the whole or any part of a
State has been declared to be a disturbed area under Section 3 of the Central Act
members of armed forces get independent power to act under Section 4 of the Central
Act and to exercise the said power for the maintenance of public order independent of
the control or supervision of any executive authority of the State. The learned counsel
has submitted that such a course is not permissible inasmuch as it amounts to handing
over the maintenance of public order in a State to armed forces directly and it
contravenes the constitutional restriction of permitting use of armed forces only in aid
of civil power. It is further urged that the expression "civil power" in Entry 1 of the
State List as well as in Entry 2A of the Union List refers to civil power of the State
Government and not of the Central Government.
27. Shri Dhawan has submitted that the power to deal with "public order" in the widest

sense vests with the States and that the Union has the exclusive power to legislate and
determine the nature of the use for which the armed forces may be deployed in aid of
the civil power and to legislate on and determine the conditions of deployment of the
armed forces and the terms on which the forces would be so deployed but the State in
whose aid the armed forces are so deployed shall have the exclusive power to
determine the purposes, the time period and the areas in which the armed forces should
be requested to act in aid of civil power and that the State retains a final directorial
control to ensure that the armed forces act in aid of civil power and do not supplant or
act in substitution of the civil power.
28. 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 armed forces in aid of the civil power has been carved out
from the said Entry and legislative power in respect of that field has been expressly
excluded. This means that the State Legislature does not have any legislative power
with respect to the use of the armed forces of the Union in aid of the civil power for the
purpose of maintaining public order in the State and the competence to make a law in
that regard vests exclusively in Parliament. Prior to the Forty-Second Amendment to the
Constitution such power could be inferred from Entry 2 of the Union List relating to
naval, military and air forces and any other armed forces of the Union as well as under
Article 248 read with Entry 97 of the Union List. After the Forty-Second Amendment the
legislative power of Parliament in respect of deployment of armed forces of the Union or
any other force subject to the control of the Union or any contingent or unit thereof in
any State in aid of the civil power flows from Entry 2-A of the Union List. The
expression "in aid of the civil power" in Entry 1 of the State List and in Entry 2 A of the
Union List implies that deployment of the armed forces of the Union shall be for the
purpose of enabling the civil power in the State to deal with the situation affecting
maintenance of public order which has necessitated the deployment of the armed forces
in the State. The word "aid" postulates the continued existence of the authority to be
aided. This would mean that even after deployment of the armed forces the civil power
will continue to function. The power to make a law providing for deployment of the
armed forces of the Union in aid of the civil power in the State does not comprehend
the power to enact a law which would enable the armed forces of the Union to supplant
or act as a substitute for the civil power in the State. We are, however, unable to agree
with the submission of the learned counsel for the petitioners that during the course of
such deployment the supervision and control over the use of armed forces has to be
with the civil authorities of the State concerned or that the State concerned will have
the exclusive power to determine the purpose, the time period and the areas within
which the armed forces should be requested to act in aid of civil power. In our opinion,
what is contemplated by Entry 2-A of the Union List and Entry I of the State List is that
in the event of deployment of the armed forces of the Union in aid of the civil power in
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.
29. Does the Central Act enable the armed forces to supplant or act as substitute for
civil power after a declaration has been made under Section 3 of the Central Act? In
view of the provisions contained in Sections 4 and 5 of the Central Act the question
must be answered in the negative. The power conferred under Clause (a) of Section 4
can be exercised only when any person is found acting in contravention of any law or
order for the time being in force in the disturbed area prohibiting the assembly of five
or more persons or the carrying of weapons or of things capable of being used as
weapons or of fire-arms, ammunition or explosive substances. In other words, the said

power is conditional upon the existence of a prohibitory order issued under a law, e.g.,
Cr. P.C. or the Arms Act, 1959. Such prohibitory orders can be issued only by the civil
authorities of the State. In the absence of such a prohibitory order the power conferred
under Clause (a) of Section 4 cannot be exercised. Similarly, under Section 5 of the
Central Act there is a requirement that any person who is arrested and taken into
custody in exercise of the power conferred by Clause (c) of Section 4 of the Act shall be
made over to the officer in charge of the nearest police station with the least possible
delay, together with a report of the circumstances occasioning the arrest. Maintenance
of Public Order involves cognizance of offences, search, seizure and arrest followed by
registration of reports of offences [FIRs], investigation, prosecution, trial and, in the
event of conviction, execution of sentences. The powers conferred under the Central Act
only provide for cognizance of offences, search, seizure and arrest and destruction of
arms dumps and shelters and structures used as training camps or as hide-outs for
armed gangs. The other functions have to be attended by the State criminal justice
machinery, viz., the police, the magistrates, the prosecuting agency, the courts, the
jails, etc. This would show that the powers that have been conferred under Section 4 of
the Central Act do not enable the armed forces of the Union to supplant or act as
substitute for the civil power of the state and the Central Act only enables the armed
forces to assist the civil power of the State in dealing with the disturbed conditions
affecting the maintenance of public order in the disturbed area.
30. Under Section 3, as amended by Act 7 of 1972, the Central Government has been
empowered to declare an area to be a disturbed area. There is no requirement that it
shall consult the State Government before making the declaration. As a consequence of
such a declaration the power under Section 4 can be exercised by the armed forces and
such a declaration can only be revoked by the Central Government. The conferment of
the said power on the Central Government regarding declaration of areas to be
disturbed areas does not, however, result in taking over of the State administration by
the Army or by other armed forces of the Union because after such declaration by the
Central Government the powers under Section 4 of the Central Act can be exercised by
the personnel of the armed forces only with the cooperation of the authorities of the
State Government concerned. It is, therefore, desirable that the State Government
should be consulted and its co-operation sought while making a declaration. It would
be useful to refer to the report of the Sarkaria Commission on Center-States Relations
which has also dealt with this aspect. The Commission has observed :
"7.5. 01...Clearly, the purpose of deployment which is to restore public order
and ensure that effective follow up action is taken in order to prevent
recurrence of disturbances, cannot be achieved without the active assistance
and co-operation of the entire law enforcing machinery of the State
Government. If the Union Government chooses to take unilateral steps to quell
an internal disturbance without the assistance of the State Government, these
can at best provide temporary relief to the affected area and none at all where
such disturbances are chronic.
7.5.02 Thus, practical considerations, as indicated above, make it imperative
that the Union Government should invariably consult and seek the cooperation
of the State Government, if it proposes either to deploy suo motu its armed
forces in that State or to declare an area as "disturbed", the constitutional
position notwithstanding. It need hardly be emphasised that without the State
Government's cooperation, the mere assertion of the Union Government's right
to deploy its armed forces cannot solve public order problems.

7.5.03 We recommend that, before deploying Union armed and other forces in
a State in aid of the civil power otherwise than on a request from the State
Government, or before declaring an area within a State as a "disturbed area", it
is desirable that the State Government should be consulted, wherever feasible,
and its cooperation sought by the Union Government. However, prior
consultation with the State Government is not obligatory."
[Parti, pp. 198, 199]
3 1 . It is, therefore, not possible to accept the contentions urged by Shri Shanti
Bhushan and Shri Dhawan that the Central Act is ultra vires the legislative power
conferred on Parliament inasmuch as it is not an enactment providing for deployment of
armed forces in aid of the civil power, but is an enactment with respect to maintenance
of public order which is a field assigned to the State legislature under Entry 1 of the
State List.
32. Another contention that has been advanced by Ms. Indira Jaisingh to challenge the
legislative competence of Parliament is that the Central Act is, in pith and substance, a
law relating to 'armed rebellion' and that the subject of armed rebellion falls within the
ambit of the emergency powers contained in Part XVIII (Articles 352 to 360) of the
Constitution and that in exercise of its legislative power under Entry 2A of the Union
List Parliament has no power to legislate on the subject of armed rebellion. It has also
been urged that Article 352 incorporates certain safeguards which are sought to be
bypassed 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 condition which
is no less than armed rebellion and the Parliament is seeking to by-pass Article 352 or
Article 356 of the Constitution and the Central Act is, therefore, unconstitutional. The
submission of Shri Dhawan is that the Central Act deals with the situation and the
circumstances which are broadly similar to the circumstances of 'internal disturbance'
and 'armed rebellion' in which a proclamation under Article 352 would be made for a
part of the territory of India and that such a proclamation under Article 352 is the only
and exclusive method to deal with such circumstances and the Parliament is dis-
empowered from enacting legislation dealing with 'armed rebellion' terrorism or
insurgency in any part of India. It has also been submitted that since, the circumstances
covered by the Central Act and Article 352 are similar, the Central Act is a colourable
legislation and a fraud on the Constitution since it does not incorporate within it
constraints similar to those contained in Article 352 which have the effect of limiting its
application within stringent limits and enabling a responsible and effective monitoring
of its use and abuse.
33. 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 legislative and executive powers of the State and that the power that has
been conferred under the Central Act is of a very limited nature. It has been pointed out
that after the insertion of "armed rebellion" in Article 352 by the Constitution (Forty-
fourth Amendment) Act, 1978, a clear distinction had been drawn between 'internal
disturbance' and 'armed rebellion' and the power under Article 352 can be invoked only
when there is a threat to the security of India by armed rebellion or war or external
aggression and the situation of internal disturbance would not justify invocation of
Article 352. Nor would it justify the invocation of the drastic provisions of Article 356 by
the President. But, at the same time, the situation would entitle the Union Government
to invoke its power and indeed perform its duties under Article 355.
34. While considering the submissions of the learned counsel in this regard, it has to

be borne in mind that Articles 352 and 356 contain emergency powers which can be
invoked by the President exercising the executive power of the Union subject to such
action being approved by both the Houses of Parliament within a specified period. The
Central Act, on the other hand, has been enacted by Parliament in exercise of its
legislative power under Articles 246 and 248.
35. Prior to the amendment of Article 352 by the Forty-fourth Amendment of the
Constitution it was open to the President to issue a Proclamation of Emergency if he was
satisfied that a grave emergency exists whereby the security of India or of any part of
the territory thereof is threatened whether by war or external aggression or 'internal
disturbance'. By the Forty-fourth Amendment the words 'internal disturbance' in Article
352 have been substituted by the words 'armed rebellion'. The expression 'internal
disturbance' has a wider connotation than 'armed rebellion' in the sense that 'armed
rebellion' is likely to pose a threat to the security of the country or a part thereof, while
'internal disturbance', though serious in nature, would not pose a threat to the security
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 aggression
emergency powers in situations of internal disturbance which are of lesser gravity. This
has been done because a proclamation of emergency under Article 352 has serious
implications having effect on the executive as well as the legislative powers of the
States as well as the Union. As a result of a proclamation under Article 352, Parliament
can make a law extending the duration of the House of the People [Article 83(2)
proviso]; Parliament gets the power to legislate with respect to any matter in the State
List [Article 250]; the executive power of the Union is enlarged so as to extend to the
giving of directions to any State as to the manner in which the executive power thereof
is to be exercised [Article 353(a)]; power of Parliament to make laws with respect to
any matter is enlarged to include power to make laws, conferring powers and imposing
duties or authorising the conferring of powers and the imposition of duties upon the
Union or officers and authorities of the Union as respects that matter, notwithstanding
that it is one which is not enumerated in the Union List [Article 353(b)]; the President
can pass an order directing that all or any of the provisions of Articles 268 to 279
relating to distribution of revenues shall have effect subject to such exceptions or
modifications as he thinks fit. [Article 354]; the provisions of Article 19 are suspended
(Article 358); and the enforcement of other rights conferred by Part III (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 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 armed rebellion
by a section of the people in those States the disturbance may not be of such a
magnitude as to pose a threat to the security of the country or a part thereof so as to
call for invocation of the emergency powers under Article 352. If the disturbance caused
by armed rebellion does not pose a threat to the security of the country and the
situation can be handled by deployment of armed forces of the Union in the disturbed
area, there appears to be no reason why the drastic power under Article 352 should be
invoked. It is, therefore, not possible to hold that the Central Act, which is primarily
enacted to confer certain powers on armed forces when deployed in aid of civil power to
deal with the situation of internal disturbance in a disturbed area, has been enacted to
deal with a situation which can only be dealt with by issuing a proclamation of

emergency under Article 352.
36. The contention based on the provisions of Article 356 is also without substance.
Reference in this context may be made to Article 355 of the Constitution whereunder a
duty has been imposed on the Union to protect every State against external aggression
and internal disturbance and to ensure that the Government of every State is carried on
in accordance with the provisions of the Constitution. In view of the said provision the
Union Government is under an obligation to take steps to deal with a situation of
internal disturbance in a State. There can be a situation arising out of internal
disturbance which may justify the issuance of a proclamation under Article 356 of the
Constitution enabling the President to assume to himself all or any of the functions of
the Government of the State. That would depend on the gravity of the situation arising
on account of such internal disturbance and on the President being satisfied that a
situation has arisen where the Government of the State cannot be carried on in
accordance with provisions of the constitution. A proclamation under Article 356 has
serious consequences affecting the executive as well as the legislative powers of the
State concerned. By issuing such a proclamation the President assumes to himself all or
any of the functions of the Government of the State and all or any of the powers vested
in or exercisable by the Governor or any body or authority in the State other than the
Legislature of the State and declares that the powers of the Legislature of the State shall
be exercisable by or under the authority of Parliament. Having regard to the drastic
nature of the consequences flowing from a proclamation under Article 356 it is required
to be approved by both Houses of Parliament within a prescribed period and it can be
continued only with the approval of both Houses of Parliament and it cannot remain in
force for more than three years. The provisions of the Central Act have been enacted to
enable the Central Government to discharge the obligation imposed on it under Article
355 of the Constitution and to prevent the situation arising due to internal disturbance
assuming such seriousness as to require invoking the drastic provisions of Article 356
of Constitution. The Central Act does not confer on the Union the executive and
legislative powers of the States in respect of which a declaration has been made under
Section 3. It only enables the personnel of armed forces of the Union to exercise the
power conferred under Section 4 in the event of a notification declaring an area to be a
disturbed area being issued under Section 3. Having regard to the powers that are
conferred under Section 4, we are unable to appreciate how the enactment of the
Central Act can be equated with the exercise of the power under Article 356 of the
Constitution.
37. As regards the submission that the Central Act is a colourable legislation and a
fraud on the Constitution, it may be mentioned that as far back as in 1954 this Court in
K.C. Gajapati Narayan Deo and Anr, v. The State of Orissa MANU/SC/0014/1953 :
[1954]1SCR1 had said :-
"It may be made clear at the outset that the doctrine of colourable legislation
does not involve any question of bona fides or mala fides 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. If the 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 lacks competency, the
question of motive does not arise at all. Whether a statute is constitutional or
not it thus always a question of power."
[pp. 10,11]
38. The same view was reiterated in R.S. Joshi, S.T.O. Gujarat Etc. Etc. v. Ajit Mills Ltd.

Ahmedabad and Anr. Etc. Etc. MANU/SC/0300/1977 : [1978]1SCR338 , decided by a
Special Bench of Seven Judges in the following observations :-
"In the jurisprudence of power, colourable exercise of or fraud on legislative
power or, more frightfully, fraud on the Constitution, are expressions which
merely mean that the legislature is incompetent to enact a particular law,
although the label of competency is stuck on it, and then it is colourable
legislation. It is very important to notice that if the legislature is competent to
pass the particular law, the motives which impel it to pass the law are really
irrelevant. To put it more relevantly to the case on hand, if a legislation,
apparently enacted under one Entry in the List, falls in plain truth and fact,
within the content, not of that Entry but of one assigned to another legislature,
it can be struck down as colourable even if the motive were most
commendable. In other words, the letter of the law notwithstanding, what is the
pith and substance of the Act? Does it fall within any entry assigned to that
legislature in pith and substance, or as covered by the ancillary powers implied
in that Entry? Can the legislation be read down reasonably to bring it within the
legislature's constitutional powers? If these questions can be answered
affirmatively, the law is valid. 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]
39. The use of the expression "colourable legislation" seeks to convey that by enacting
the legislation in question the legislature is seeking to do indirectly what it cannot do
directly. But ultimately the issue boils down to the question whether the legislature had
the competence to enact the legislation because if the impugned legislation falls within
the competence of the legislature the question of doing something indirectly which
cannot be done directly does not arise.
40. As regards the competence of Parliament to enact the Central Act, we have already
found that keeping in view Entry 1 of the State List and Article 248 read with Entry 97
and Entries 2 and 2A of the Union List Parliament was competent to enact the Central
Act in 1958 in exercise of its legislative power under Entry 2 of the Union List and
Article 248 read with Entry 97 of the Union List and, after the forty-second amendment
of the Constitution, the legislative power to enact the said legislation is expressly
conferred under Entry 2A of the Union List and that it cannot be regarded as a law
falling under Entry 1 of the State List. Since Parliament is competent to enact the
Central Act, it is not open to challenge on the ground of being a colourable legislation
or a fraud on the legislative power conferred on Parliament.
41. Having dealt with the question of legislative competence of Parliament to enact the
Central Act, we would now proceed to deal with the submission of the learned counsel
assailing the provisions contained in the Act. The expression 'disturbed area' has been
defined in Section 2(b) to mean an area which is for the time being declared by
notification 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) has to be read with Section 3 which contains
the power to declare an area to be a 'disturbed area'. In the said section a declaration
about disturbed area can be made where the Governor of that State or the Administrator
of that Union Territory of the Central Government is of the opinion that the whole or
any part of such State or Union Territory, as the case may be, is in such a disturbed or
dangerous condition that the use of armed forces in aid of the civil power is necessary.

Since the use of armed 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 against internal disturbance, the disturbance in the area to be declared as
'disturbed area' has to be of such a nature that the Union would be obliged to protect
the State against such disturbance. In this context, reference can also be made to
Article 257A which was inserted by the Forty-Second Amendment along with Entry 2A of
the Union List. Although Article 257A has been deleted by the Forty-Fourth Amendment,
it can be looked into since it gives an indication regarding the disturbance which would
be required for deployment of armed forces of the Union for use of the civil power. The
said article provided that the Government of India may deploy any armed forces of the
Union for dealing with any grave situation of law and order in any State. It can,
therefore, be said that for an area to be declared as 'disturbed area' there must exist a
grave situation of law and order on the basis of which the Governor/Administrator of
the State/Union Territory or the Central Government can form an opinion that area is in
such a disturbed or dangerous condition that the use of armed forces in aid of the civil
power is necessary. It cannot, 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.
42. 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 requirement of a periodic
review of a declaration issued under Section 3 and that a declaration once issued can
operate without any limit of time. We are unable to construe Section 3 as conferring a
power to issue a declaration without 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
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 duration and a
declaration can be issued only when there is grave situation of law and order, the
making of the declaration carries within it an obligation to review the gravity of the
situation from time to time and the continuance of the declaration has to be decided on
such a periodic assessment of the gravity of the situation. During the course of the
arguments, the learned Attorney General has made the following statement 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 future notifications within a period of at the
most one year from the date of issue, and if continued, within a period of one
year regularly 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."
43. The learned counsel for the petitioners have urged that the period of 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 Central Act.
Keeping in view the fact that the declaration about an area being declared as a

'disturbed area' can be issued only in a grave situation of law and order as well as the
extent of the powers that can be exercised under Section 4 of the Central Act in a
disturbed area, we are of the view that a periodic review of the declaration made under
Section 3 of the Central Act should be made by the Government/Administration that has
issued such declaration before the expiry of a period of six months.
44. 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 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 is, therefore,
necessary that the authority exercising the power under Section 3 to make a declaration
so exercises the said power that the extent of the disturbed area is confined to the area
in which the situation is such that it cannot be handled without seeking the aid of the
armed forces and by making a periodic assessment of the situation after the deployment
of the armed forces the said authority should decide whether the declaration should be
continued and, in case the declaration is required to be continued, whether the extent of
the disturbed area should be reduced.
45. 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 the purpose of issuing a
declaration the application of mind must be that of the Central Government with respect
to the circumstances in which such deployment of armed forces is to take place and that
conferment of the power to make a declaration on the Governor of the State cannot be
held to be valid. There is a basic infirmity in this contention. There is a distinction
between delegation of power by a statutory authority and statutory conferment of power
on a particular authority/authorities by the Legislature. Under Section 3 of the Central
Act there is no delegation of power of the Central Government to the Governor of the
State. What has been done is that the power to issue a declaration has been conferred
by Parliament on three authorities, namely, (1) the Governor of the State. (2) the
Administrator of the Union Territory, and (3) the Central Government. In view of the
information available at the local 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 armed 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. 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 armed 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 under Section 3 cannot, therefore, be regarded as delegation of power of
the Central Government.
46. Shri Dhawan has taken a different stand. He has assailed the conferment of power
to issue a declaration under Section 3 on the Central Government on the ground that
the words 'in aid of the civil power' postulate that the State alone should consider

whether the public order requires armed 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 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 aid of civil power in a
State is to be made by the Central Government in discharge of the said constitutional
obligation, the conferment of the power to issue a declaration on the Central
Government cannot be held to be violative of the federal scheme as envisaged by the
Constitution.
47. 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 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 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. The said provision has a very limited application inasmuch as it enables the
Executive Magistrate to deal with a particular incident involving breach of public
security arising on account of an unlawful assembly and the use of the armed forces for
dispersing such unlawful assembly. The Central Act makes provisions for dealing with a
different type of situation where the whole or a part of a State is in a disturbed or
dangerous condition and it has not been possible for the civil power of the State to deal
with it and it has become necessary to seek the aid of the armed 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 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. 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.
48. 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 also be exercised by a Non-
Commissioned Officer who is much inferior in rank and that as a result of the
conferment of these powers on a junior officer, there is likelihood of the powers being
misused and abused. 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/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 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 10 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 Delhi High Court in the
judgment under appeal in Civil Appeals Nos. 721-24 of 1985 (reported in
MANU/DE/0154/1983 : AIR1983Delhi513 ) wherein it has been observed:-
"The argument is based on unawareness of the rank and responsibilities of
officers like Havildars. In army setup or setups following the army pattern
Havildar is not such a junior official or such an irresponsible officer 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 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 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 by and large commanded by Havildars.
That is why the Havildars are treated as and recognised as Non-Commissioned
Officers. The three categories of officers generally are Commissioned Officers,
Junior Commissioner Officers and Non-Commissioned Officers. Havildars are
Non-Commissioned Officers."
[pp. 533,534]
49. 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 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.
50. We may now examine the submissions of the learned counsel for the petitioners
assailing the validity of Clauses (a) to (d) of Section 4 of the Central Act.
5 1 . As regards Clause (a) of Section 4 the submission is that it empowers any
Commissioned Officer, Warrant Officer or Non-Commissioned Officer or any other
person of equivalent rank in the armed forces to fire upon or otherwise use force even
to the causing of death against any person who is acting in contravention of any law or

order for the time being in force in the disturbed area prohibiting the assembly of five
or more persons or the carrying of weapons or things capable of being used as weapons
or of fire arms, ammunition or explosive substances. It has been urged that the
conferment of such a wide power is unreasonable and arbitrary. We are unable to agree.
The powers under Section 4(a) can be exercised only when (a) a prohibitory order of
the nature specified in that clause is in force in the disturbed area; (b) the officer
exercising those powers forms the opinion that it is necessary to take action in for
maintenance of public order against the person/persons acting contravention of such
prohibitory order; and (c) a due warning as the officer considers necessary is given
before taking action. The laying down of these conditions gives an indication that while
exercising the powers the officer shall use minimal force required for effective action
against the person/ persons acting in contravention of the prohibitory order. In the
circumstances, it cannot be said that Clause (a) of Section 4 suffers from the vice of
arbitrariness or is unreasonable.
52. 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 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 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
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.
53. 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 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 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 to control such activities cannot be held to be
arbitrary or unreasonable.
54. 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 such force as may be necessary to effect the
arrest. The said power is not very different from the power which has been conferred on

a police officer under Section 41 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 arrest. It has been
urged that there is nothing in Section 5 to indicate that the officer exercising the power
of arrest under Section 4(c) is obliged to 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 (1) 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 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 custody beyond the said period without the authority of
a Magistrate.
55. 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 premises, and 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 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. It
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 under Section 4(c) but since such seized property or material will be required in
the 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 the nearest Police Station with the least possible delay
together with a report of the circumstances occasioning the search and seizure.
56. An argument was raised that in view of the proviso to Sub-section (2) of Section 1
Cr.P.C. the provisions of Cr.P.C., other than those relating to Chapters VIII, X and XI
thereof, are not applicable to the State of Nagaland 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 of
these rules. [See : State of Nagaland v. Ratan Singh, etc., MANU/SC/0083/1966 :
1967CriL J265 ]. In the circumstances, 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 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.
57. 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 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 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 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 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, MANU/SC/0071/1955 :
[1955]28ITR941(SC) , the validity of Section 197 of the CrPC, 1898 (which was in pari
materia with Section 197 of the CrPC, 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 withhold 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 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 is subject to judicial review, the Central Government shall pass an
order giving reasons.
58. 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 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 has been
submitted that an inquiry is made whenever any complaint about misuse 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. 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 FORCES SPECIAL
POWERS ACT, 1958
Do's.
I. Action before Operation.
(a) Act only in the area declared 'Disturbed Area' under Section 3 of 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 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.
(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 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 destroy
property of the public or unnecessarily enter into the house/ 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.
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.
(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 arrest and the terrain
in which such person has been arrested. Least possible delay may be 2-3 hours
extendable to 24 hours or so depending upon a particular case.
(e) After raid make out a list of all arms, ammunition or any other incriminating
material/document taken into possession.

(f) All such arms, ammunition, stores etc. should be handed over to the Police
Station alongwith the seizure memo.
(g) Obtain receipt of persons and arms/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.
(i) Make a record of the commander and other officer/JCOs/NCOs forming 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 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.
(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.
(d) Maintain detailed record of the entire operation correctly and explicitly.
Don'ts
1 . Do not keep a person under custody for any period longer than 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.
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.
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."
5 9 . The instructions in the List of "Do's and Don'ts" which must be followed while
providing aid to the civil authority are as under :-
"LIST OF DO'S AND DON'TS WHILE PROVIDING AID TO CIVIL AUTHORITY.
DO'S

1. Act in 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.
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.
(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.
(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) Keep Light Machine Gun and Medium Gun in reserve.
(i) Cease firing immediately once the object has been attained,
(j) Take immediate steps to secure wounded.
6. Maintain cordial relations with civilian authorities and Para Military Forces.
7. Ensure high standard of discipline.
Don'ts
8. Do not use excessive force.
9. Do not get involved in hand to hand struggle with the mob.
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.
14. No meddling 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."

6 0 . 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.
61. In State of Uttar Pradesh v. Chandra Mohan Nigam and Ors. MANU/SC/0335/1977 :
(1978)ILL J6SC , 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 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 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]
6 2 . In Supreme Court Advocates-On-Record Association and Ors. v. Union of India,
MANU/SC/0073/1994 : AIR1994SC268 , one of us, Verma J., as the learned Chief
Justice 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 :-
"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 conformity
with the constitutional scheme, should also be accorded legal sanction by
permissible constitutional interpretation." [pp. 694-695]
63. 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 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.
64. While considering the submissions assailing the validity of Clauses (a) 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 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 CrPC, namely, the proviso to Sub-section (2) of
Section 47, Sub-sections (2) of Section 51, Sub-section (3) of Section 100 and
proviso to Sub-section (1) of Section 160 of the Code."

65. 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 with the guidelines contained in the
decisions of this Court in this regard.
66. 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 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 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.
67. 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 to Section 3 of the Central Act. Section 4
contains provisions similar to those contained in Section 4(a) of the Central Act. The
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 Armed
Branch of the Police or any officer of the Assam Rifles not below the rank of Havildar/
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 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.
68. The construction placed by us on the provisions of Sections 3 and 6 of the Central
Act and the reasons given for upholding the validity of the same equally 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.
69. The validity of Sections 4 and 5 of the State Act has been assailed by 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. 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.
70. 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 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 III). The question of invalidity of the said

provisions in the State Act on the ground of being repugnant to a central legislation,
e.g., Cr.P.C., enacted under Entry 2 of List III 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 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.
71. 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 of
Dibrugarh, Tinsukia, Sibsagar, Jorhat, Nagaon, Dhemaji, Lakhimpur, Sonitpur, Barrang,
Nalbari and Barpeta and also the city of Guwhati and shall not apply in the districts of
Golaghat, Morigaon, Dhubri, Kokrajhar, Bongaigaon, Goalpara, Kamrup (except the city
of Guwahati), 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 of
India. On the basis of the said Report the High Court 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.
72. The learned Attorney General has submitted that the High Court was in error 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 S.R. Bommai
v. Union of India, MANU/SC/0444/1994 : [1994]2SCR644 , the learned Attorney
General has urged that in exercise of the power of judicial 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 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 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 of the State Government's
failure to act."
73. The Governor has mentioned that the districts of Tinsukia, Dibrugarh, Sibsagar,
Jorhat 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 other areas were not affected. In
the 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 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 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."
7 4 . It cannot, therefore, be said that there was no material before the Central
Government on the basis of which it could form the requisite 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 Central Act shall not apply to the
districts aforementioned cannot, therefore, be sustained and has to be set aside.
75. 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 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 we are 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, Goalpara,
Kamrup (except the city of Gauhati), Karbi Angiong, North Cachar Hills, Cachar,
Karimganj and Hailakandi and the said direction is, therefore, set aside.
76. The High Court has also directed [direction No. (ii)] that the Central 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 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.
77. The other direction [direction No. (iii)] given by the High Court is that the Central
Government and the State Government should issue following 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 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'.
7 8 . 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.
79. In the light of the above discussion we arrive at the following conclusions :-
(1) 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 2 A 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.
(2) The expression "in aid of the civil power" in Entry 2A of List I and Entry 1
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.
(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 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
administration so that the situation which has necessitated the deployment of
armed forces is effectively dealt with and normalcy 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 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 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/ 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 armed forces in aid of the civil power is
necessary.
(8) A declaration under Section 3 has to be for a limited duration and there
should be periodic review of the declaration before the expiry of six months.
(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 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 federal scheme as
envisaged by the 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 by the Central Act.
(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.
(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 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.
(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.
(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 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
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 disregard to the said 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 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. 2551 of 1991.
(21) A complaint containing an allegation about misuse or abuse of 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.
(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 1 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 officer of the Assam
Rifles not below the rank of Jamadar" in Section 5 of the State Act have been
rightly held to be unconstitutional by the Delhi High Court since Assam Rifles
are a part of the armed forces of the Union and the State Legislature in exercise
of its power under Entry 1 of List 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 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) The considerations governing the exercise of the powers conferred under
Sections 3 to 6 of the Central Act indicated above will also apply to exercise of
powers conferred under Sections 3 to 6 of the State Act.
(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 be set aside.
80. In the result, Civil Appeals Nos. 721-24 of 1985 filed against the judgment of Delhi
High Court are dismissed, Civil Appeals Nos. 2173-76 of 1991 filed against the
judgment of the Gauhati High Court are allowed to the extent indicated above and Civil
Appeal No. 2551 of 1991 filed against the said judgment is dismissed. Writ Petitions
Nos. 550 of 1982, 5328 of 1980, 9229-30 of 1982 and 13644-45 of 1984 will stand
disposed of in terms of this judgment. No order as to costs.
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MANU/SC/0906/1998

IN THE SUPREME COURT OF INDIA

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