Naga People's Movement of Human Rights v. Union of India

The word aid postulates the continued existence of the authority to be aided, so that even after deployment the civil power continues to function.

The power to legislate for deployment in aid of the civil power does not include the power to enact a law enabling the armed forces to supplant or act as a substitute for the civil power; the armed forces operate in cooperation with the civil administration until normalcy is restored.

The Act does not displace the civil power, and it 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 a Proclamation under article 352 or article 356.

Those five conclusions are the constitutional core, and they should be quoted rather than paraphrased. They mean that AFSPA is not emergency rule, and that the moment the army supplants the civil administration the Act itself has been exceeded.

The declaration under section 3

Section 3 does not confer an arbitrary or unguided power: for a declaration there must exist a grave situation of law and order on the basis of which the authority can form the opinion that the use of armed forces in aid of the civil power is necessary.

A declaration has to be for a limited duration and there should be a periodic review before the expiry of six months.

A declaration may be made by the Central Government suo motu without consulting the State Government, but it is desirable that the State be consulted.

Conferring the power on the Governor is not a delegation of the Central Government's power, and conferring it on the Central Government does not violate the federal scheme.

The six month review is not in the Act. It is the Court's requirement, and it is the reason declarations are in practice made for six months at a time.

The powers under section 4

Sections 130 and 131 of the Code of Criminal Procedure, on the dispersal of assemblies by the armed forces, cannot be treated as comparable and adequate to deal with a situation requiring the use of armed forces in aid of the civil power as the Act envisages.

The powers under clauses (a) to (d) of section 4 and under section 5, including their exercise by a non commissioned officer, are not arbitrary or unreasonable and do not violate articles 14, 19 or 21.

Minimal force. While exercising the power under section 4(a) the officer shall use minimal force required for effective action against the person acting in contravention of the prohibitory order.

Twenty four hours. A person arrested under section 4(c) should be handed over to the officer in charge of the nearest police station with the least possible delay so that he can be produced before the nearest magistrate within twenty four hours of the arrest, excluding the time taken for the journey.

Seizure. Property, arms and ammunition seized during a search under section 4(d) must be handed over to the nearest police station with a report of the circumstances occasioning the search and seizure, and the provisions of the Code governing search and seizure have to be followed.

The twenty four hour direction is the most important sentence in the judgment. Section 5 says only least possible delay; the Court read into it the constitutional guarantee in article 22(2) and section 57 of the Code, which is worked in [Article 22(1) and 22(2): The Rights of an Arrested Person]. After this decision the soldier's obligation is measured by the magistrate's clock.

Section 6 and the sanction

Section 6, in so far as it confers a discretion on the Central Government to grant or refuse sanction, does not suffer from the vice of arbitrariness. But since the order granting or refusing sanction is subject to judicial review, the Central Government shall pass an order giving reasons.

And, in conclusion 21: a complaint alleging misuse or abuse of the powers shall be thoroughly inquired into, and if the allegations are found correct the victim should be suitably compensated and the necessary sanction for prosecution or a suit should be granted.

Those two conclusions together are the answer to the criticism that section 6 is an absolute immunity. It is not: the refusal of sanction is a reasoned order, and it is reviewable.

The do's and don'ts made binding

Conclusion 19. While exercising the powers under clauses (a) to (d) of section 4 the officers 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 would entail suitable action under the Army Act 1950.

Conclusion 20. Those instructions shall be suitably amended to bring them into conformity with the guidelines in the Court's decisions and to incorporate the safeguards in clauses (a) to (d) of section 4 and section 5 as construed.

The list itself is set out in the judgment, and the parts a student should be able to reproduce are these.

Before an operation: act only in an area declared disturbed under section 3; the power to open fire, use force or arrest is to be exercised only by an officer, a junior commissioned officer, a warrant officer or a non commissioned officer; obtain definite information from the local civil authorities before a raid or search; and as far as possible co-opt a representative of the local civil administration during the raid.

During an operation: before opening fire, ascertain first that it is essential for the maintenance of public order, and open fire only after due warning; arrest only those who have committed or are about to commit a cognizable offence or against whom reasonable grounds exist; ensure that troops do not harass innocent people, destroy public property or unnecessarily enter houses of people not connected with unlawful activities; and ensure that women are not searched or arrested without the presence of female police, and in fact are searched by female police only.

After an operation: prepare a list of the persons arrested; hand them over to the nearest police station with the least possible delay, with a report of the detailed circumstances; justify every delay, the least possible delay being two to three hours extendable to twenty four hours or so depending on the place, the time and the terrain; list all arms and material seized and hand them over with a seizure memo, obtaining a receipt; record the area, date, time and the persons participating; and ensure medical relief to any person injured, the dead body of any person who dies being handed over immediately to the police with the details leading to the death.

The don'ts: do not keep a person in custody longer than the bare necessity for handing him over; do not use force after arrest except when he is trying to escape; do not use third degree methods to extract information or a confession; a person arrested shall not be interrogated by a member of the armed forces; do not release an apprehended person yourself, release being through the civil authorities; do not tamper with official records; and the armed forces shall not take a person back after he is handed over to the civil police.

The fourth don't deserves a sentence of its own. The army may arrest but may not interrogate. That single instruction removes from AFSPA the feature that made TADA notorious, because a confession extracted in army custody could never be a lawful confession under any statute in force.

The State Act

The Assam Act is in pith and substance a law in respect of the maintenance of public order under Entry 1 of List II. But the words extending its powers to an officer of the Assam Rifles not below the rank of Havildar in section 4, and not below the rank of Jamadar in section 5, were rightly held unconstitutional by the Delhi High Court, because the Assam Rifles are part of the armed forces of the Union and a State Legislature acting under Entry 1 of List II is not competent to legislate in relation to the armed forces of the Union. The rest of sections 4 and 5 of the State Act survive.

That pairing repays attention. A State may confer these powers on its own police under Entry 1 of List II; it may not confer them on a force of the Union. The line between Entry 1 of List II and Entry 2A of List I is drawn by whose force it is, not by what the force does.

Whether the safeguards have held

An LL.M. answer should not stop at the twenty six conclusions.

The direction that has worked. The six month review is followed, and declarations are made and renewed for six months at a time.

The direction that is contested. Section 6 sanction. The Court held that a refusal must be reasoned and is reviewable, and that where a complaint is found correct sanction should be granted. Whether sanction is in fact granted is a question of practice, and this book does not put a figure in the reader's mouth that it has not verified.

The direction that changed the law elsewhere. The requirement of a thorough inquiry into every complaint of misuse, and of compensation to a victim where the allegation is found correct, is the same principle the Court applied in the custodial death cases, which are worked in [Human Rights and the Police: Custodial Violence].

A worked example

Soldiers in a disturbed area in Assam fire on a group of three men at a checkpoint, killing one. There was no prohibitory order about assembly, but the men were said to be carrying weapons. The two survivors are held at the camp overnight, questioned about their associates, and taken to a police station the next evening.

Was the firing within section 4(a)? Only if the men were acting in contravention of a law or order prohibiting the carrying of weapons; and on conclusion 14 only minimal force required for effective action was permissible.

Was the overnight custody lawful? No. On conclusion 15 the arrested person must be handed over with the least possible delay so that he can be produced before the nearest magistrate within twenty four hours, and the do's put the least possible delay at two to three hours, extendable to about twenty four depending on the terrain.

Was the questioning lawful? No. The fourth don't provides that a person arrested by a member of the armed forces shall not be interrogated by a member of the armed forces.

Do the breaches of the do's and don'ts matter legally? Yes. On conclusion 19 the instructions are binding and disregard entails suitable action under the Army Act 1950.

Can the officer be prosecuted? Only with sanction under section 6, but on conclusions 18 and 21 the complaint must be thoroughly inquired into, a refusal must be by a reasoned order and is subject to judicial review, and if the allegations are found correct the victim should be compensated and sanction should be granted.

What it does NOT mean

It does not hold the Act to be beyond challenge in its application. It holds the provisions valid and then attaches conditions to their exercise.

It does not make AFSPA emergency rule. The Act is expressly held not to be a colourable substitute for article 352 or article 356.

It does not leave the six month rule to the Government. The requirement of periodic review before the expiry of six months is a direction of the Court.

Section 6 is not an absolute bar. The discretion must be exercised by a reasoned order which is subject to judicial review.

Quick revision

• Naga People's Movement of Human Rights v. Union of India, AIR 1998 SC 431, Constitution Bench of five judges, 27 November 1997, judgment of S.C. Agrawal J.
• Competence: Entry 2 of List I and article 248 with Entry 97, and after the 42nd Amendment Entry 2A of List I; not a public order law under Entry 1 of List II.
• Aid of the civil power: the civil power continues to function; the armed forces may not supplant it; the Act is not colourable and is not a substitute for article 352 or article 356.
• s.3: no arbitrary power; a grave situation of law and order must exist; the declaration must be for a limited duration with periodic review before six months; the Centre may declare suo motu though consultation with the State is desirable.
• s.4 and s.5 upheld, including exercise by a non commissioned officer; minimal force under s.4(a); handing over so as to reach a magistrate within twenty four hours; the Code's search and seizure provisions to be followed.
• s.6 valid, but the order granting or refusing sanction must give reasons and is subject to judicial review; complaints of misuse to be thoroughly inquired into, with compensation and sanction where found correct.
• The army's list of do's and don'ts is binding, breach entailing action under the Army Act 1950; among the don'ts, no third degree methods and no interrogation by a member of the armed forces.
• The Assam State Act is public order legislation under Entry 1 of List II, but could not extend the powers to the Assam Rifles, who are a force of the Union.

Test yourself

1. Under which entry does the Act now rest, and why does that matter? Entry 2A of List I, inserted by the 42nd Amendment, dealing with the deployment of any armed force of the Union in a State in aid of the civil power; it matters because it places the Act outside Entry 1 of List II and so outside the States' field of public order.

2. What does the expression in aid of the civil power require? That the deployment be for the purpose of enabling the civil power in the State to deal with the situation, and, since aid postulates the continued existence of the authority to be aided, that the civil power continue to function and not be supplanted.

3. What did the Court require of a declaration under section 3? That there exist a grave situation of law and order on which the opinion is formed, that the declaration be for a limited duration, and that there be a periodic review before the expiry of six months.

4. State the two directions on section 4 that most change its operation. That only minimal force required for effective action may be used under clause (a), and that a person arrested under clause (c) must be handed over with the least possible delay so that he can be produced before the nearest magistrate within twenty four hours of the arrest, excluding journey time.

5. What is the legal effect of the list of do's and don'ts? It is binding on the officers exercising the section 4 powers, disregard of it entails suitable action under the Army Act 1950, and the list was to be amended to bring it into conformity with the Court's guidelines and with the safeguards in sections 4 and 5 as construed.