• LAWGIC STRATUM

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

Author: Karthik T



This article contains a brief notice for Naga People's Movement of Human Rights v. Union of India, (1998) 2 SCC 109: AIR 1998 SC 431.


In this case, a Constitution Bench of five judges considered the validity of the Armed Forces (Special Powers) Act, 1958 (as amended) (AFSPA) enacted by Parliament and the Assam Disturbed Areas Act, 1955 enacted by the State Legislature of Assam.


The Court ruled unanimously in favor of the validity of both the AFSPA and the Assam Act.AFSPA was enacted (and later amended) to give representatives of the armed forces special powers in troubled areas in some states, and it now covers the entire state of Arunachal Pradesh, as well as Assam, Manipur, Meghalaya, Mizoram, Nagaland, and Tripura. The Governor of the State or the Central Government has the authority under this Act to declare the whole or any part of the State to be in such a troubled or dangerous state that the use of armed forces in aid of the civil power is deemed appropriate in their view.


Certain officers in the armed forces have been given special powers in the disturbed areas in respect of matters stated in clauses (a) to (d) of the said section in the region designated as a "disturbed area." These powers include the ability to open fire and even kill, as well as the ability to detain without a warrant and destroy a weapons cache, among others. Section 6 offers immunity to those acting under the Act, stating that no investigation, suit, or other legal action shall be brought against any individual in respect of anything done or alleged to be done in the exercise of the Act's powers without the prior approval of the Central Government.


The Supreme Court held that


1. The AFSPA is legal under the law


2. In light of Entry 1 of the State List and Article 248 read with Entry 97 and Entries 2 and 2-A of the Union List, Parliament has the authority to enact this Act. In 1958, Parliament was competent to enact this Act in the exercise of its legislative power under Entry 2 of the Union List and Article 248 read with Entry 97 of the Union List, and, following the Forty-second Amendment to the Constitution, the legislative power to enact the said legislation is expressly conferred under Entry 2-A of the Union List, and it cannot be regarded as a law falling under Entry 2 of the Union List.


3. Since Parliament has the authority to pass AFSPA, it cannot be challenged because it is colorable legislation or a fraud on Parliament's legislative power.


4. The Union is obligated under Article 355 of the Constitution to defend each state against external aggression and internal strife, as well as to ensure that each state's government operates in compliance with the Constitution's provisions.


5. The provisions of the Central Act were enacted to allow the Central Government to fulfill its obligations under Article 355 of the Constitution and to prevent situations arising from internal disturbances from being so severe as to necessitate invoking the Constitution's harsh provisions of Article 356.


6. The ‘disturbed or hazardous state' in which AFSPA deals is not comparable to ‘armed insurrection within the context of Art. 352, and hence the Act's legitimacy cannot be questioned based on Parliament's attempt to circumvent Art. 352 or 356 which deal with more extreme forces.


7. A grave situation of law and order must occur for a region to be declared a "disturbed area," based on which the Governor of the State or the Central Government can form the opinion that the area is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is required. As a result, it cannot be said that under Section 2(b) read with Section 3 of the Central Act, an arbitrary and unguided power has been conferred in the matter of declaring a region as a disturbed area.


8. 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 believes it is necessary to take action for the maintenance of public order against the person/persons acting in contravention of such prohibitory order, and (c) a due warning as the offender has been issued can the powers under Section 4(a) of AFSPA be exercised. These provisions indicate that, in exercising the powers, the officer would use the least amount of force necessary to take appropriate action against the individual or persons acting in violation of the prohibitory order. Clause (a) of Section 4 cannot be said to suffer from the vice of arbitrariness or to be irrational in the circumstances.


9. Section 4 of AFSPA cannot be challenged on the basis that more severe provisions found in S. 4 of AFSPA were discriminatory and in violation of Art. 14 since alternative provisions under the general law, namely Ss. 130 and 131 Cr.P.C., were accessible. Ss. 130 and 131 Cr.P.C. deal with particular and isolated situations, while S. 4 deals with a situation in which the whole or a portion of a state is in a troubled or dangerous state. The provisions of Sections 130 and 131 of the Criminal Procedure Code are insufficient to deal with the situation described in Section 4 of the AFSPA.


10. Other AFSPA clauses, such as the prerequisite for sanction for prosecution, were also found to be legally legitimate.


11. The Supreme Court ordered that the Army Headquarters' instructions in the form of "Dos and Don'ts" issued by the Army Headquarters be treated as binding instructions that must be followed by members of the armed forces when deployed in areas declared as "disturbed areas" under the Act.


476 views0 comments

Recent Posts

See All