TMI Blog1998 (7) TMI 698X X X X Extracts X X X X X X X X Extracts X X X X ..... Navin Prakash, ms. S.Janani, S. k. Bhattacharya, R.S. Sodhi, Advs. with them for the appearing parties. JUDGMENT: S.C. AGRAWAL, J.: These writ petitions and appeals raise common questions relating to the validity of the Armed Forces (Special Powers) Act, 1958 (as amended) enacted by Parliament (hereinafter referred to as 'the Central Act') and the Assam Disturbed Areas Act, 1955 enacted by the State Legislature of Assam. (hereinafter referred to as 'the State Act'). The Central Act was enacted in 1958 to enable Certain special powers to be conferred upon the members of the armed forces in the disturbed areas in the State of Assam and the Union Territory of Manipur. By Act 7 of 1972 and Act 69 of 1986 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 12(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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 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Rule No. 203 of 1980] the challenge was to the validity of the Assam prevention Detention Ordinance, 1980, which had been replaced by Assam Preventive Detention Act, 1980 and the validity of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Central Act and notification dated December 7,1990 issued und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding 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 State Act. We have heard Shri Shanti Bhushan, Ms. Indira Jaisingh, Shri Kapil Sabil 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 intervene and Shri Rajiv Dhavan has addressed the Court on its behalf. As noticed earlier, the provisions contained in the State Act are also found in the Central Act which contains certain additional provisions. The Submissions on the Validity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the said area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons; (b) arrest without warrant any person who has committed a cognizable offence, or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence; (c) enter and search, without warrant, any premises to make any such arrest as aforesaid, or to recover any person believed to be wrongfully restrained or confined, or any property reasonably suspected to be stolen property, or any arms believed to be unlawfully kept, in such premises. Section 3. Protection of persons acting under this Act,- No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purporting to be done in exercise of the powers conferred by Section 2. This Act was a temporary statute enacted for a period of one yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te or the Administrator of that 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 and 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 vo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 officers 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. Provisions on the same lines were contained in Sections 129 to 131 of the Criminal procedure Code, 1898. In this context, it may be mentioned that under Section 23(1) of the Reserve Forces 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Civil power). By the Constitution (Forty-Second Amendment) Act, 1976, Entry 2A was inserted in the Union List. The said entry roads 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. Entry 1 of the State List was amended to read as under:- Public order (but not including the use of any naval, military or air force or any other armed force of the Union or of any other force subject to the control of the Union or of any contingent or unit thereof in aid of civil power. By the said amendment Article 257A was also inserted which was in the following terms:- Article 257-A. Assistance to States by deployment of armed forces or other forces of the Union. -(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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke 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 o any part of a State has been declared to be 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ist. The expression in aid of the civil power in entry 1 of the State List and in Entry 2A of the Union List implies that deployment of the armed forces of the Union shall be for the purpose of enabling the civil power in the State to deal with the situation affecting maintenance of public order which has necessitated the deployment of the armed forces in the State. The word aid postulates the continued existence of the authority to be aided. This would mean that even after deployment of the armed forces the civil power will 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 t supplant or ac as substitute for the civil power of the State and the Central Act only enables the armed forces to assist the civil power of the State in dealing with the disturbed conditions affecting the maintenance of public order in the disturbed area. Under Section 3, as amended by Act 7 of 1972, the Central Government has been empowered to declare an area to be a disturbed area. There is no requirement that it shall consult the State Government before making the declaration. As a consequence of such a declaration the power under section 4 can be exercised by the armed forces and such a declaration can only be revoked by the Central Government. The conferment of the said power on the Central Government regarding declaration of areas to be disturbed areas does not, however, result in taking over of the state administration by the Army or by other armed forces of the Union because after such declaration by the Central Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order which is a field assigned to the State legislature under entry 1 of the State List. Another contention that has been advanced by Ms. Indira Jaisingh to Challenge the legislative competence of parliament is that the Central Act is, in pith and substance, a law relating to 'armed rebellion' and that the subject of armed rebellion falls within the ambit of the emergency powers contained in Part XVIII (Articles 352 to 360) of the Constitution and that in exercise of its legislative power under Entry 2A of the Union List Parliament has no power to legislative on the subject of armed rebellion. It has also been urged that Article 352 incorporates certain safeguards which are sought to be by passed by the Central Act., Shri Sibal has also adopted the same line and has urge 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 Dhavan is that the Central Act deals with the situation and the circumstances which are broadly similar to the circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislative power under Articles 246 and 248. Prior to the amendment of Article 352 by the Forty- fourth Amendment of the Constitution it was open to the president to issue a proclamation of Emergency if he was satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened whether by war or external aggression or `internal disturbance'. By the Forty-fourth Amendment the Words `internal disturbance' in Article 352 have been substituted by the words `armed rebellion'. The expression `internal disturbance' has a wider connotation than `armed rebellion' in the sense that `armed rebellion' is likely to pose a threat to the security of the county or a part thereof, while `internal disturbance', thought 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 inaccordance 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 procl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. The State of Orissa, 1954 SCR 1, 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] The same view was reiterated in R.S. Joshi, S.T.O. Gujarat Etc. Etc. v Ajit Mills Ltd., Ahmedabad Anr. Etc. Etc., 1978 (1) SCR 338, decided by a Special Bench of Seven Judges in the following observations:- In the jurisprudence of power, colourable exercise of or fraud on legislative power or, more frightfully, fraud on the Constitution, are expressions which merely mean that the legislature is incompetent to enact a particular law, although the label of competency is stuck on it, an d then it is colourable legislation. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parliament to enact the Central Act, we would now proceed to deal with the submissions 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 Jaising has assailed the validity of the said provision on the ground that it is vague inasmuch as it does not lay down any guidelines for declaring an area to be a 'disturbed area'. We do not find any substance in this contention. Section 2(b) has to be read with Section 3 which contains the power to declare an areas to be a 'disturbed area'. In the said section 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 Stat 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued only when there is grave situation 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 sch 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. The learned counsel for the petitioners have urged that the period of one y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the State is invalid since it amounts to delegation of power of the Central Government and that for the purpose of issuing a declaration the application of mind must be that of the Central Government with respect to the circumstances in which such deployment of armed forces is to take place and that conferment of the power to make a declaration on the Governor of the State cannot be held to be valid. There is a basic infirmity in this contention. There is a distinction between delegation of power by a statutory authority and statutory conferment of power on a particular authority/authorities by the Legislature. Under Section 3 of the Central Act there is no delegation of power of the Central Government to the Governor of the State. What has been done is that the power to issue a declaration has been conferred by Parliament on three authorities, namely, (1) the Governor of the State;(2) the 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 prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 other wise 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a Jawan is promoted to the rank of Naik after approximately 8 to 10 years of service and to the rank of Havildar after 12 to 15 years or service and that a Non Commissioned Officer exercising powers under Section 4 is a mature person with adequate experience and is reasonably well versed with the legal provisions. 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 AIR 1983 Delhi 513) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary to take action 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 reasonable. Shri Dhavan 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 or 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Articles 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 arres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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., 1966(3) SCR 830, at pp. 851, 852]. In the circumstances, it must be held that 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. 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Before we conclude the consideration of t he 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 Jaising 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 mis-use of powers conferred under the Central Act is received and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry delay in handing over the suspects o 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 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 State alongwith the seizure memo. (g) Obtain receipt of persons 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 officers/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) Diretions of the High Court/Supreme Court should be promptly attended to. (b) Whenever summoned by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 meddling in civilian administration affairs 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. 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. In State of Uttar Pradesh v. Chandra Mohan Nigam Ors., 1978 (1) SCR 521, this Court, while considering the validity of Rule 16(3) of the All India Services (Death- Cum-Retirement Benefits) rules, 1958, which empowered the Central Government to compulsorily retire a member of the All India Service, took note of the instructi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Army Officers while effecting the arrest of woman or making search of woman or in searching the place in the actual occupancy of a female shall follow the procedure meant for the police officers as contemplated under the various provisions of the Code of Criminal Procedure, namely, the proviso to sub-section (2) of Section 47, sub- section (2) of Section 51, Sub- section (3) of Section 100 and proviso to sub-section (1) of section 160 of the Code . The safeguards against an arbitrary exercise of powers conferred under Section 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 Dont's 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. In order that t he 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 hat there is substance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. As regards the submission of Shri Goswami that the provisions of Section 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 Section 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of which the Central Government formed the opinion for the purpose of making declaration under Section 3 of the Central At. 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. The Governor has mentioned that the districts of Tinsukia, Dibrugarh, Sibsagar, Jorhat and Nagaon on the South Bank of Brahmaputra dn those of D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the districts of Golaghat, Morigaon, Dhubri, Kakrojhar, Bongaigaon, Goalpara, Kamrup (except the city of Gauhati), Karbi Anglong, North Cachar Hills, Cachar, Karimganj and Hailakandi and the said direction is , therefore, set aside. 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 expire 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. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tored. (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 Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dis- ragard 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 containin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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