SYMBIOSIS LAW SCHOOL, PUNE

National Security, Public Order and Rule of Law

Topic:
Working of Armed Forces Special Power Act, 1958:
Naga People’s Movement for Human Rights V. Union of India
(1998) 2 SCC 109

Submitted by:
Prashant Kumar Singh,
LL.M. 1st year,
Roll No. 35,
SLS, Pune
Prashant K Singh, LL.M-I, Roll No-35
1
 THE ARMED FORCES (SPECIAL POWERS) ACT, 1958

Introduction:
Violence became the way of life in north-eastern States of India. State administration became
incapable to maintain its internal disturbance. Armed Forces (Assam and Manipur) Special
Powers Ordinance was promulgated by the President on 22nd May of 1958. In which some
special powers have been given to the members of the armed forces in disturbed areas in the
State of Assam and Union Territory of Manipur. Later the Ordinance was replaced by the armed
Forces Special Powers Bill.

Statement of Objects and Reasons:

An ordinance entitled the Armed forces (Assam and Manipur) Special Powers Ordinance,
1958, was promulgated by the President on the 22nd May, 1958. Section 3 of the
Ordinance powers the Governor of Assam and the Chief Commissioner of Manipur to
declare the whole or any part of Assam or the Union territory of Manipur, as the case
may be, to be a disturbed area. On such a declaration being made in the Official Gazette,
any Commissioned Officer, Warrant Officer, non-commissioned officer or any other
person of equivalent rank in the armed forces may exercise, in the disturbed area, the
powers conferred by section 4 and 5 of the Ordinance.

ACT 28 of 1958:
The Armed Forces (Special Powers) Bill was passed by both the Houses of Parliament
and it received the assent of the President on 11th September, 1958. It came on the
Statute Book as THE ARMED FORCES (SPECIAL POWERS).

The Act is applicable to certain North Eastern States [Arunachal Pradesh, Assam, Manipur,
Meghalaya, Mizoram, Nagaland and Tripura] and Jammu & Kashmir, because these are
insurgency affected states.
This Law is basically made to deal with situation of internal disturbance. If any state is facing
insurgency or terrorism acts than this law may be used.

Prashant K Singh, LL.M-I, Roll No-35

2
By the Constitution (Forty-second Amendment) Act, 1976, A new Entry 2A was added in Union
List (List-I) to incorporate this Law.

Section 2: Definition:

The term ‘Disturbed area’ means an area which is ‘for the time being’ declared under
section 3to be a disturbed area.

Section 3: Power to declare areas to be disturbed areas:

Under this section Centre and State both can declare any state to be disturbed state or any
part of such state.

Section 4: Special powers of the Armed Forces:

This section should be read with Art 34 of Indian Constitution where certain
Fundamental Rights can be modified in any area where Marshal Law is applicable.

If any area declared to be disturbed area than Armed Forces can exercise special power under
this section.

 If any person violates the Law and order than with due warning Armed Forces can fire
and can even cause death.
 Enter and search without warrant any premises according to the provisions of Cr.P.C.
 Power of arrest without warrant- any person who has committed any cognizable offence
or is suspected to commit any cognizable offence and this clause should be read with
section 5 of this Act.

Section 5: The arrestee must be sent to nearest police station with least possible delay so that
they can produce the arrestee before the magistrate with in 24hrs of arrest.

Note: What is the least possible delay is not described.

Section 6: Protection to person acting under Act:

Prashant K Singh, LL.M-I, Roll No-35

3
 No action whatsoever can be brought against the members of the Armed Forces without
the previous sanction of the Central Government.

In 2004 T. Manorama was raped as suspected terrorist in Manipur by member of Armed Forces.
Judicial enquiry was ordered and they found Armed Forces as accused but no judicial
prosecution can be brought against the members of Armed Forces (Assam Rifles) because it
cannot be done without the prior permission of Central Government.

 Now it is applicable in some parts of Manipur.

The validity of this Law was challenged in Supreme Court under Art 32:

Naga People’s Movement for Human Rights V. Union of India

(1998) 2 SCC 109
It was held by the five Judge Bench:

J.S.Varma(C.J.), M.M.Punchhi, S.C,Agrawal, Dr. A.S.Anand, S.P.Bharucha.

In this case there are certain issues before the Supreme Court:

1. It was argued that public order is a state matter and not the matter of central. Law
did not fall in list-I and III.

Supreme Court observed that whether subject matter of law falls in list-II, if answer is no then it
automatically falls in Central list because residuary power wasted with Centre under Art 248 r/w
Entry 97 of list-I.

Art 248- Residuary power:

(1) Parliament has exclusive power to make any law with respect to any matter not
enumerated in the Concurrent List or State List.
(2) Such power shall include the power of making any law imposing a tax not mentioned
in either of those Lists.
Entry 97 of List I- Any other matter not enumerated in List II or List III including any tax not
mentioned in either of those Lists.
Art 355- Duty of the Union to protect states against external aggression and internal disturbance.

This law not only made to deal with public order, it also deals with internal disturbance.

Prashant K Singh, LL.M-I, Roll No-35

4
Application Pith and Substance – when a law dealing with a subject in one list touching on a
subject in another list. In such case, what has to be ascertained is the pith and substance of
enactment.

Take the law as organic hole, if the subject matter falls under its true nature and object.

Court said that this law falls under the category of ‘Internal Disturbance’.

2. Parliament shall not have executive power to deploy Armed Forces in state and to
supervise the Armed Forces. And to decide purpose, area and time period for which
Armed Forces shall be deployed.

If they are given such power then it will be violation of federalism which is basic
structure of Indian Constitution.

Supreme Court observed that section 3 of the said act gives power to Centre and state to declare
any area to be disturbed area. If an area is declared to be disturbed area then Army will be
deployed in that area and Army will get power under section 4 of the Act.

It can be said that if Centre has power to deploy or supervise Army then in such a case it is
violation of federalism, because Army performs only the functions conferred on them by the Act.
Other routine functions of maintenance of law and order have to be performed by police.

So Army is only to aid police and not to substitute police. Thus it can be said that Army aids
civil power of the state.

Art 257(A) was deleted by 44th Constitutional Amendment Act 1978, which said that without the
consent of the state, Centre could deploy Armed Forces.

The supervision of Army shall take place by mutual co-operation between Centre and State. So
we can say that it is not violative of federalism.

3. Emergency can be imposed under Art 352 and 356 but there are many hurdles in
imposing emergency like it can be imposed only for 1 year.

Parliament by colorable legislation has imposed emergency by enacting this law.

Supreme Court observed that enactment of this law and deployment of Army cannot be said to
impose emergency. Armed rebellion is different from internal disturbance because in internal
disturbance there is no threat to security of state as such, in the present case there are incidents of
Armed Rebellion but the situation is not as grave as it threat to security of Nation.

If this law will have not been enacted and implemented the situation would have become so
grave that the situation of emergency would have arisen.
Prashant K Singh, LL.M-I, Roll No-35
5
So this law is made only to prevent the situation of emergency and thus it cannot be said that it is
the colorable use of power.

As we know that motive is irrelevant in case of Legislative actions.

4. What is the meaning of ‘for time being’ used in section 2(b).

It is for indefinite period or limited period?

Supreme Court observed that order of Centre or State Government can be enforce only for 6
months.

Every six months there is periodical review by Government.

5. Enough power to deploy Army is available under section 130 of Cr.P.C.

Supreme Court observed that scope of section 130 of Cr.P.C. is limited incidents. This law is
more comprehensive and the situations in these states are too serious so it needs a serious law
and section 130 of Cr.P.C. is not adequate.

Sec 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
6. Discretion given to Armed Forces under section 6 is arbitrary.

Supreme Court observed that section 6 is not arbitrary because the order of the Central
Government refusing or granting the sanction under section 6 is subject to judicial review.

Court cannot look into desirability of law. Supreme Court can only decide whether a law is
constitutionally valid or not.

Prashant K Singh, LL.M-I, Roll No-35

6
Guidelines of the Supreme Court:

 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.
 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 form the place of
arrest to the court of magistrate.
 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.
 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.

Recommendations of B.P.Jeevan Reddy committee:-

If there are terrorist acts in a state, then Centre can deploy Armed Forces without the consent of
the State Government. Repeal the act and take its good features in unlawful prevention act.

But their recommendations are still not accepted.

Prashant K Singh, LL.M-I, Roll No-35

7