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Case Critique: Naga Peoples Movement of Human Rights v.

Union of India 1

Its been 53 years since the implementation of the Armed Forces (Special Powers) Act, 1958, yet the northeast is still subservient to the said Act. Despite its removal from Punjab and J & K, Central Government of India is yet to deliberate and decide on the question of its removal from the northeast states despite massive violations of fundamental rights of Indian citizens and pressure from International Human Rights Agencies. The objective of this write up is to analyse a single issue presented in the said case and view whether the stand as taken by the Supreme Court was just or not as per the Indian Constitution. History: On 15 August 1942, at the height of the Quit India Movement, the British Government stating that it was necessary to confer special powers on certain officers of His Majesty's armed forces as an emergency had arisen, brought in the Armed Forces (Special Powers) Ordinance, 1942. Reflecting the policies of the erstwhile colonial rulers towards the north-eastern states, the Government of Independent India swiftly promulgated a series of legislations - the Assam Maintenance of Public Order (Autonomous districts) Act, 1953, Assam Disturbed Areas Act, 1955 - which concluded in the Armed Forces (Assam & Manipur) Special Powers Act in 1958. This latest Act enhanced the powers given to army personnel under the 1942 ordinance. The subsequent division of states in the North-East led to amendments in 1972 and 1986 extending the Act to all the newly created states. The amendment additionally gave powers to the Central Government to apply the Act, a power which was hitherto a sole prerogative of State Government through the Governor. The title of the Act was also changed to the Armed Forces (Special Powers) Act, 1958 Purpose of the enactment: As seen from the above Central Government of India, wanting to suppress Nationalist Movement of the Naga people which they viewed as a threat to the recent begotten freedom made the Government promulgate the said Act. The case: Those who make peaceful revolution impossible will make violent revolution inevitable. ~John F. Kennedy~ Massive violations of fundamental rights in the northeast brought forth writ petitions filed by Naga Peoples' Movement for Human Rights, Peoples Union for Democratic Rights, Delhi,
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AIR 1998 SC 431

Human Rights Forum, Manipur among others before the Supreme Court between 1980 and 1982 challenging the constitutional validity of the Armed Forces (Special Powers) Act, 1958 The said Act was challenged on the grounds of being violative of the fundamental rights as granted to the citizens of India as per the Constitution. These petitions were kept pending by the Supreme Court for long fifteen years, during which period the violations of rights continued. The case was finally argued in August 1997. Issues in the case: The central issues in the case were three fold:  The said Act being a Central Act Did the Union legislature have powers under the Constitution to enact such an Act?  Did the Act violate the Constitution under Articles 14, 19, 21 and 22?  Lastly, whether the Act was unconstitutional under Article 352/ 356 of the Indian Constitution? Delimitations: In this paper, I shall confine to the first issue only i.e.  Did the Union legislature have powers under the Constitution to enact such an Act? Analysis of the issue: In order to understand and analyse this issue, one must refer/ determine the source of power to enact such an Act. Therefore in order to locate the source of power, one must examine List I and List II of the Indian Constitution. Under the Seventh Schedule, List I of the Indian Constitution:
y

Entry 2 A : Deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of the civil power; powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment.

While under the same schedule, List II of the Indian Constitution,


y

Entry 1: Public order (but not including [the use of any naval, military or air force or any other armed force or the Union or of any other force subject to the control of the Union or of any contingent or unit thereof] in aid of the civil power).

On analysing both the provisions of the Indian Constitution, one will notice that the Union has the power to make laws in relation to:
y y

Armed/ other forces of the Union Deployment in respect to  Jurisdiction

 

Privileges Liabilities of the members of such force

The cautionary word in Entry 2A is that it must be in the aid of the civil power. Therefore the Union ought to use the Army only in the aid of the civil power and not supplant the existing civil power in the state. The argument as placed before the Honble Supreme Court by the petitioners was to examine the objective of the said Act, which was to maintain/ interest of public order. That being the objective of the Act, the Union was out of its bounds to have enacted such an Act. The term public order falls under List II Entry 1 of the State List. Hence the there was no legislative competency to enact such an Act, thereby being unconstitutional. As a counter argument and as held by the Honble Supreme Court, it was held that the Act in pith and substance deals/ in relation to Armed forces of the Union, which falls under List I Entry 2A of the Union List. Thereby the Supreme Court upheld the fact that the Union did have legislative competency to have enacted such an Act. Further the Honble Supreme Court held that the Armed forces are not to supplant the civil power but instead they are to act in aid of the civil power. This decision of the Supreme Court is largely a disappointment as the court failed to examine the functioning of the Act per se and decide for itself whether or not the Armed forces were acting in aid of civil power or were displacing / supplanting the civil power. The Supreme Courts justified that the Act did not allow for supplantation of the civil power by the Armed forces by examining sec. 4 (a) and 5 of the said Act. The court contended that sec. 4(a) entails that the Armed forces only act when there is a contravention of any law and order of the state (meaning that any law as passed by the state legislature would amount it to be civil power). Thereby fulfilling the cautionary provision of acting in aid of the civil power as listed at Entry 2. Similarly in respect to sec. 5 of the said Act, the court holds that the requirement of the Armed forces to produce arrested person with least possible delay before the police would fulfil the requirement of acting in aid of civil power. Such justification by the Supreme Court is unfounded and surprising that the highest forum of judiciary would give such rationale to uphold an unconstitutional Act.

Uncertainty in the Supreme Court: The above case is compared with other two cases2, in order to highlight the Supreme Courts vague and uncertain ways of deciding cases in respect to the said Act and how there seems to be a degradation in its response to such cases.

Sebastian M. Hongray v. Union of India 1984 AIR 1026; Masooda Parveen v. Union Of India & Ors 2001 (4) SCC 548

The Supreme Court in Sebastian M. Hongray v. Union of India3 had taken a proactive stance in holding the Central Government responsible for the actions of the Army in violating the fundamental rights of the people. The court imposed exemplary costs of Rs. 100,000 to be paid to each of the families. After the M. Hongrays case, it was Naga Peoples Movement of Human Rights v. Union of India4 that came forth before the Supreme Court, challenging the validity of the said Act. Here the court seemed to be in a defensive mode when there were/are apparent factors of unconstitutionality of the said Act, the court persisted to defend the indefensible. Then the case of Masooda Parveen v. Union of India & Ors5 came before the Supreme Court whereby the court failed to confirm to its own decision as laid down in Naga Peoples Movement of Human Rights v. Union of India6. Rather in this case the court went to the other extreme of deciding that ordering for compensation against the actions of the armed forces would have a detrimental effect on the morale of the armed forces. The court totally disregarded the fact that an individuals life was lost in total disregard to the law of the land.

Conclusion: Need of a watchdog for the watchdog This case highlights the arbitrariness and unreasonableness of the Supreme Court. The question then arises who is to protect citizens against the watch dog? There is no reply. It is abhorrent that the highest forum for protection of fundamental rights would be the very same forum of such violations. It is extremely baffling that instead of noticing the inherent defects within the Act when tested against the Constitution, the Supreme Court turns a blind eye.

3 4

Supra 2 Supra 1 5 2001 (4) SCC 548


6

Ibid 4

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