Sections 5 and 6: Handing Over, and the Sanction Bar

In one line

Section 5 requires an arrested person to be made over to the nearest police station with the least possible delay with a report of the circumstances, and section 6 forbids any prosecution, suit or other legal proceeding against a person acting under the Act except with the previous sanction of the Central Government.

Section 5: the handing over

Any person arrested and taken into custody under this Act shall be made over to the officer in charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest.

Three things it achieves.

It prevents detention by the forces themselves. The person must be transferred out of military custody into police custody.

It brings article 22 into operation. Once the person is with the police, article 22(2) requires production before the nearest magistrate within twenty-four hours, so the ordinary constitutional safeguard attaches.

And it creates a document. The report of the circumstances occasioning the arrest is a contemporaneous record made by the arresting force, which is evidence in any subsequent proceeding.

Its weakness is the phrase least possible delay, which fixes no period. The safeguards laid down in the Naga People's Movement decision address it by requiring the person to be handed over normally within twenty-four hours, and [The Naga People's Movement Decision, and the Safeguards] takes them.

Section 6: the sanction bar

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 this Act.

Five features, and each matters.

It covers civil as well as criminal proceedings. The words are prosecution, suit or other legal proceeding, so a suit for damages by the family of a person killed requires sanction just as a prosecution does.

It covers purported exercise. Anything done or purported to be done extends the bar to acts that were not in fact authorised by the Act, provided they were purportedly done under it, which is what makes the protection wide.

The sanction is of the Central Government, not of the State, even where the offence is a State subject and the victim's family is in the State.

It is a previous sanction, so the proceeding cannot be instituted and then regularised.

And no time limit or duty to decide is stated. The section does not require the Government to decide a sanction request within any period or to give reasons, which is where the practical difficulty lies.

Why section 6 is the operative obstacle

Two reasons, and they should be given in this order.