Supreme Court AOR Examination – Leading Cases – Naga People’s Movement of Human Rights v. Union of India, (1998) 2 SCC 109

This article contains a brief note for the leading case of Naga People’s Movement of Human Rights v. Union of India, (1998) 2 SCC 109 : AIR 1998 SC 431, which is a part of the paper “Leading Cases” for the Supreme Court Advocate on Record Examination 2015. This note was a part of my lecture delivered in 2013 to about 100+ Advocates who were preparing for the AOR examination. It is a part of the AOR series on leading cases.

Naga People’s Movement of Human Rights v. Union of India, (1998) 2 SCC 109 : AIR 1998 SC 431:

In this case, questions relating to 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, were raised before a Constitution Bench of 5-Judges. The Court delivered a unanimous decision and upheld the validity of both AFSPA and the Assam Act.

AFSPA was enacted (and later amended) to enable certain special powers to be conferred upon the members of the armed forces in the disturbed areas in certain States and it now extends to the whole of the State of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. Under this Act, power has been given to the Governor of the State or the Central Government, to declare the whole or any part of such State if it is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is considered necessary in their opinion. In the area declared as “disturbed area”, certain officers in the armed forces have been conferred special powers in the disturbed areas in respect of matters specified in clauses (a) to (d) of the said section. These powers include power to open fire and even kill, as well to arrest without warrant and to destroy arms dump, etc. 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.

The Supreme Court held as under:

1. AFSPA is constitutionally valid.
2. Parliament is competent to enact this Act in view 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 was competent to enact this 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 to the Constitution, the legislative power to enact the said legislation is expressly conferred under Entry 2-A of the Union List and that it cannot be regarded as a law falling under Entry 1 of the State List.
3. Since Parliament is competent to enact AFSPA, it is not open to challenge on the ground of being a colourable legislation or a fraud on the legislative power conferred on Parliament.
4. Under Article 355 of the Constitution, 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.
5. 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 the Constitution.
6. ‘Disturbed or dangerous condition’ with which AFSPA deals is not similar to ‘armed rebellion’ within the meaning of Art. 352 and therefore, validity of the Act cannot be challenged on ground of Parliament seeking to bypass Art. 352 or 356 which pertain to more drastic powers.
7. For an area to be declared as a “disturbed area” there must exist a grave situation of law and order on the basis of which the Governor of the State or the Central Government can form an 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 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.
8. The powers under Section 4(a) of AFSPA 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 for maintenance of public order against the person/persons acting in 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.
9. Section 4 of AFSPA cannot be challenged on the ground that alternative provisions under general law, viz., Ss. 130 and 131 Cr.P.C. being available, more drastic provisions contained in S. 4 of AFSPA were discriminatory and violative of Art. 14. Ss. 130 and 131 Cr.P.C. deal with individual and isolated cases while S. 4 is concerned with a situation where whole or a part of a State is in a disturbed or dangerous condition. Ss. 130 and 131 Cr.P.C. cannot be treated as comparable and adequate to deal with the situation envisaged in Section 4 of AFSPA.
10. Likewise, other provisions of AFSPA were also held to be constitutionally valid, including the requirement for sanction for prosecution.
11. In view of allegations of widespread abuse of powers conferred under AFSPA by the personnel of the armed forces while such forces were deployed in the areas declared as “disturbed areas” under it, the Supreme Court directed that the instructions in the form of “Dos and Don’ts” issued by the Army Headquarters have to be treated as binding instructions which are required to be followed by the members of the armed forces exercising powers under AFSPA 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.

IMPORTANT: Read notes on other leading cases for the SC AOR Examination: AOR Series.