Naga People’s Movement of Human Rights Vs. Union of India

Facts of the Case
Since independence India has been fighting separatist and insurgents across the country especially in the North-Western Frontier region. Since the civil administration there was incapable of controlling the increased violence by the extremist elements the Central Government provided for a law in order to deploy Union Armed Forces in aid of the civil administration to tackle the militants. After the deployment of Armed Forces there were many incidents of human rights violations by the soldiers which raised the eyebrows of the civil liberties groups and concerned authorities. 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 and the Assam Disturbed Areas Act, 1955 enacted by the State Legislature of Assam. This petition was amalgamated from different writs one of which was an appeal from a Delhi High Court judgment which upheld the constitutional validity of the Central Act and 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 1 of the Constitution and the State Legislature of Assam could not legislate with regard to Assam Rifles. Thus the words “Assam Rifles” were struck down from the relevant provisions of the State Act. 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 States of Assam, Manipur and Tripura have been challenged.

Issues of the Case

1. Whether deployment of armed forces is a substitute to civil administration?
2. Whether the central act bypasses the Article 352 and 356 thus unconstitutional?
3. Whether central act is a colorable legislation?
4. Whether provisions of the act declaring a region disturbed area without any guidelines
   valid?
5. Whether there is redundancy in section 4 of the central act?
6. Whether delegation of Delegation of Special Powers to Non Commissioned Officer
   valid?
7. Whether legal immunity to armed force personnel valid?
8. Whether the State Act is valid?

Petitioner’s Contention

1. The Petitioner’s contended 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. They 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.
2. Petitioners contended that the law was in pith and substance related to the Emergency provisions and the parliament does not have any power to legislate on the subject of “armed rebellion” and the said Act bypasses the Article 352 and 356 thus unconstitutional.
3. The petitioners assailed the validity of the provisions by stating an absence of specific guidelines to declare a region as “disturbed”.
4. The petitioners argued that the Section 130 and 131 are enough to use armed forces for maintaining public order and the Section 4 of the Act is therefore redundant.
5. The provisions of Section 4, in general, have been assailed by 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.
6. Section 6 provides a legal immunity to the armed forces personnel from being prosecuted and thereby increases chances of human rights violations by them.

Respondent’s Contentions

1. The Respondent’s rebutted by stating that the power to handle public order rested with the State but the Union had power to legislate and nature of use of armed forces with final dictatorial powers related to the time period and areas of operation for the armed forces remain with the State thus the civil power is not substituted.
2. The Attorney General argued that “the 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.” Reference in this context was made to
   Article 355 of the Constitution where under 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.
3. 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. While the security situation in those areas require a broader legal
   ambit for security forces to act.
4. The NCO has to be granted such authority since an infantry battalion has to be divided into teams to operate and the NCO leads one of such teams. The NCO 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 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.

Judgment of the Case

1. Petitioner’s contention was negated by the Supreme Court on the rationale that the word “aid” as used in the provisions postulates the continued existence of an authority to be aided and therefore the law enacted to aid the civil administration by the deployment of the armed forces cannot taken as to supplant or substitute the civil administration.
2. 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 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 while the situation in the concerned
   areas does not call for such drastic measures. In view of the Article 355 the Union Government is under an obligation to take steps to deal with a situation of internal disturbance in a State. Thus this enactment is not an exercise of powers under Article 356 of the Constitution.
3. As regards the competence of Parliament to enact the Central Act, Court found that 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 colorable legislation or a fraud on the legislative power conferred on Parliament
4. The argument of petitioner stating that provisions of the act are invalid because of absence guidelines was turned down by the court stating that it is clearly provided in the Act that the in this context, reference can also be made to deleted Article 257A which can be looked in to 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 it can be declared.

5. 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 disturbance. Thus the provisions of the CrPC cannot be said to be adequate to deal with situation.
6. The Supreme Court negated the argument by stating that 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 and has a considerable experience of serving in the armed forces thereby conferment of authority as per Section 4 is held justified.
7. The Supreme Court turned down the arguments by the Petitioners stating that 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 of 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 CrPC. 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. However, the permission if not granted by the Government was always open to the judicial review.
8. The State Act which mirrored the Central Act was also regarded by the petitioners as invalid but the Court stated that 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. 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 of List II was not competent to enact a law in relation to armed forces of the Union. 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 CrPC. and the Arms Act. 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.
   
   CONCLUSION
   The judgment given by the Supreme Court in this case can be termed as a balanced judgment in which the Supreme Court analyzed both the central and state acts and properly reviewed the contentions advanced by both petitioner and respondent. Court understood the importance of preserving the national interest and gave its judgment. However the main problems of the Naga people were not addressed by the court properly that is the problem of human rights
   violation. The court only focused on the validity of both the act and held them valid. But as the citizens of India look uuto the Supreme Court for protection of their rights and liberties, it should also have taken a cognizance of such human right violations and directed the authorities to take actions to prevent such things from happening again.