IMPORTANT POINT
Parliament was competent to enact the Armed Forces (Special Powers) Act, 1958, in exercise of the legislative power conferred on it under Entry 2 of List I and Article 248 r/w Entry 97 of List I of the Constitution of India.

Headnote:(i) Constitution of India-Article 32-Armed Forces (Special Powers) Act, 1958-Writ Petitions challenging validity of the Act-Legislative competence of Parliament to enact the Act-Held, competence to make law with respect to use of armed forces of the Union in aid of civil power for purpose of maintaining public order in the State vests exclusively in Parliament-Prior to Forty-Second Amendment to Constitution, such power could be inferred from Entry 2 of Union List as well as under Art. 248 r/w Entry 97 of Union List-After Forty Second Amendment, legislative power of Parliament in this respect flows from Entry 2-A of Union List-Expression in aid of civil power in Entry 1 of State List and in Entry 2A of Union List-Meaning-Word aid -Meaning of.
       Held : Parliament was competent to enact the Central Act in exercise of the legislative power conferred on it under Entry 2 of List I and Article 248 read with Entry 97 of List I. After the insertion of Entry 2A in List I by the Forty-Second Amendment to the Constitution, the legislative power of Parliament to enact the Central Act flows from Entry 2A of List I. It is not a law in respect of maintenance of public order falling under Entry I of List II. The expression "in aid of the civil power" in Entry 2A of List I and in Entry 1 of List II implies that deployment of the armed forces of the Union shall be for the purpose of enabling the civil power in the State to deal with the situation affecting maintenance of public order which has necessitated the deployment of the armed forces in the State. The word "aid" postulates the continued existence of the authority to be aided. This would mean that even after deployment of the armed forces the civil power will continue to function. [Para 61 (1-3)]
       (ii) Constitution of India-Entry 2-A of Union List and Entry 1 of State List-Armed Forces (Special Powers) Act, 1958-Deployment of armed forces of the Union in aid of civil power in a State-Said forces shall operate in the State concerned in co-operation with civil administration-Does the Central Act enable armed forces to supplant or act as substitute for civil power after a declaration has been made u/s 3 of the Act?-(No).
       Held : In our opinion, what is contemplated by Entry 2-A of the Union List and Entry I of the State List is that in the event of deployment of the armed forces of the Union in aid of the civil power in a State, the said forces shall operate in the State concerned in cooperative with the civil administration so that the situation which has necessitated the deployment of the armed forces is effectively dealt with and normalcy is restored. (Para 18)
       Maintenance of Public Order involves cognizance of offences, search, seizure and arrest followed by registration of reports of offences (FIRs), investigation, prosecution, trial and, in the event of conviction, execution of sentences. The powers conferred under the Central Act only provide for cognizance of offences, search, seizure and arrest and destruction of arms dumps and shelters and structures used as training camps or as hide-outs for armed gangs. The other functions have to be attended by the State criminal justice machinery, viz., the police, the Magistrates, the prosecuting agency, the courts, the jails etc. This would show that the powers that have been conferred under Section 4 of the Central Act do not enable the armed forces of the Union to supplant or act as substitute for the civil power of the State and the Central Act only enables the armed forces to assist the civil power of the State in dealing with the disturbed conditions affecting the maintenance of public order in the disturbed area. (Para 19)
       The conferment of the said power on the Central Government regarding declaration of areas to be disturbed areas does not, however, result in taking over of the State administration by the Army or by other armed forces of the Union because after such declaration by the Central Government the powers under Section 4 of the Central Act can be exercised by the personnel of the armed forces only with the cooperation of the authorities of the State Government concerned. It is, therefore, desirable that the State Government should be consulted and its co-operation sought while making a declaration. (Para 20)
       (iii) Armed Forces (Special Powers) Act, 1958-Validity of-Challenged on ground of being a colourable legislation or fraud on legislative power conferred on Parliament-Challenge dismissed-Held, since Parliament is competent to enact the Central Act, it is not open to challenge on this ground.
       Held : The Central Act 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 contemplated by a Proclamation of Emergency under Article 352 or a proclamation under Article 356 of the Constitution. [Para 61 (6)]
       (iv) Armed Forces (Special Powers) Act, 1958-Sections 2(b) and 3-Expression disturbed area -Provisions of Section 2(b) challenged as vague-Held, Section 2(b) to be read with Section 3-Declaration about an area being declared as a disturbed area can be issued only in a grave situation of law and order-Periodic review of declaration made u/s 3 should be made-Section 3 does not confer an arbitrary or unguided power to declare an area as a disturbed area -Conferment of power to make declaration u/s 3 on Governor of State-Not a delegation of power of Central Government-Conferment of power u/s 3 on Central Government-Not violative of federal scheme as envisaged by Constitution.
       Held : Section 3 of the Central Act does not confer an arbitrary or unguided power to declare an area as a "disturbed area". For declaring an area as a "disturbed area" under Section 3 there must exist a grave situation of law and order on the basis of which the Governor/Administrator of the State/Union Territory of the Central Government can form an opinion that the area is in such a disturbed or dangerous condition that the use of the armed forces in aid of the civil power is necessary. A declaration under Section 3 has to be for a limited duration and there should be periodic review of the declaration before the expiry of six months. Although a declaration under Section 3 can be made by the Central Government suo moto without consulting the concerned State Government, but it is desirable that the State Government should be consulted by the Central Government while making the declaration. The conferment of the power to make a declaration under Section 3 of the Central Act on the Governor of the State cannot be regarded as delegation of the power of the Central Government. The conferment of the power to make a declaration under Section 3 of the Central Act on the Central Government is not violative of the federal scheme as envisaged by the Constitution. [Para 61 (7) to (11)]
       (v) Armed Forces (Special Powers) Act, 1958-Section 4-Conferment of powers u/s 4 on Non-commissioned Officer-Whether renders the provision invalid on ground of arbitrariness.
       Held : Having regard to the status and experience of the Non-Commissioned Officers in the Army and the fact that when in command of a team in a counter insurgency operation they must operate on their own initiative, it cannot be said that conferment of powers under Section 4 on a Non-Commissioned Officer renders the provision invalid on the ground of arbitrariness. (Para 37)
       (vi) Armed Forces (Special Powers) Act, 1958-Section 4(a) to (d)-Validity of-Powers u/s 4(a) to (d) challenged as arbitrary-Challenge dismissed accordingly-While exercising powers under clauses (a) to (d) of Section 4, armed forces shall strictly follow instructions contained in Do s and Don ts issued by army authorities.
       Held : The powers under Section 4(a) 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 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. (Para 38)
       The two orders are different in nature in the sense that an order prohibiting the assembly of five or more persons can be issued under Section 144 Cr.P.C., while an order prohibiting the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances has to be passed under the Arms Act, 1959 or other similar enactment. The word "or" links the two prohibitory orders and if it is read as "and", as suggested by Shri Dhavan, the result would be that action could only be taken under clause (a) where both the prohibitory orders were contravened by a person/persons. Such a construction would defeat the purpose of the provision and cannot be accepted. (Para 39)
       Section 4(b) confers the power to destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made or any structure used as training camp for armed volunteers or utilised as a hide-out by armed gangs or absconders wanted for any offence. Absconders wanted for an offence are persons who are evading the legal process. In view of their past activities the possibility of their repeating such activities cannot be excluded and the conferment of the power to destroy the structure utilised as a hide-out by such absconders in order to control such activities cannot be held to be arbitrary or unreasonable. (Para 40)
       The power conferred under Section 4(c) read with Section 5 has to be exercised in consonance with the overriding requirements of clauses (1) and (2) of Article 22 of the Constitution which means that the person who is arrested by an officer specified in Section 4 has to be made over to the officer in charge of the nearest police station together with a report of the circumstances occasioning the arrest with the least possible delay so that the person arrested can be produced before the nearest Magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the Magistrate and no such person can be detained in custody beyond the said period without the authority of a Magistrate. (Para 41)
       It is no doubt true that there is no provision similar to Section 5 requiring the handing over of the property or arms, ammunitions etc. that are seized during the course of search under Section 4(c) but since such seized property or material will be required in the proceedings to be initiated against the culprits from whose possession the same was recovered, it is implicit in the power that has been conferred under Section 4(d) that it should be exercised in accordance with the provisions relating to search and seizure contained in the Criminal Procedure Code and the property or the arms, ammunitions, etc. that is seized during the course of search under Section 4(d) must be handed over to the officer in charge of the nearest Police Station with least possible delay together with a report of the circumstances occasioning the search and seizure. (Para 42)
       Finally held : The provisions contained in Sections 130 and 131 Cr.P.C. cannot be treated as comparable and adequate to deal with the situation requiring the use of armed forces in aid of civil power as envisaged by the Central Act. The powers conferred under clauses (a) to (d) of Section 4 and Section 5 of the Central Act on the officers of the armed forces, including a Non-Commissioned Officer are not arbitrary and unreasonable and are not violative of the provisions of Articles 14, 19 or 21 of the Constitution. 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 from the place of arrest to the court of Magistrate. The property or the arms, ammunitions, etc. seized during the course of search conducted under Section 4(d) of the Central Act must be handed over to officer-in-charge of the nearest police station together with a report of the circumstances occasioning such search and seizure. 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. [Paras 61 (12) to (17)]
       (vii) Armed Forces (Special Powers) Act, 1958-Section 6-Protection given under-Cannot be regarded as conferment of immunity on persons exercising powers under the Act-Order of Central Government refusing or granting sanction u/s 6 being subject to judicial review-Central Government shall pass an order giving reasons.
       Held : Section 6 of the Central Act in so far as it confers a discretion on the Central Government to grant or refuse sanction for instituting prosecution or a suit or proceeding against any person in respect of anything done or purported to be done in exercise of the powers conferred by the Act does not suffer from the vice of arbitrariness. Since the order of the Central Government refusing or granting the sanction under Section 6 is subject to judicial review, the Central Government shall pass an order giving reasons. [Para 61 (18)]
       (viii) Armed Forces (Special Powers) Act, 1958-Section 4(a) to (d)-Exercise of powers under-Officers of armed forces shall strictly follow instructions contained in the list of "Do s and Don ts" issued by army authorities which are binding-Instructions shall be suitably amended to bring them in conformity with guidelines contained in decisions of this Court.
       Held : The instructions in the form of "Do s and Don ts to which reference has been made by the learned Attorney General have to be treated as binding instructions which are required to be followed by the members of the armed forces exercising powers under the Central Act 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. (Para 48)
       While considering the submissions assailing the validity of clauses (a) to (d) of Section 4 and Section 5, we have construed the said provisions as containing certain safeguards against arbitrary exercise of power. In this context, reference may also be made to the order dated July 4, 1991 passed by this Court in Civil Appeal No. 2551 of 1991. (Para 49)
       The safeguards against an arbitrary exercise of powers conferred under Sections 4 and 5 as indicated above as well as the said direction should be incorporated in the instructions contained in the list of "Do s and Don ts" and the instructions should be suitably amended to bring them in conformity with the guidelines contained in the decisions of this Court in this regard. (Para 50)
       (ix) Armed Forces (Special Powers) Act, 1958-Complaints of misuse or abuse of powers by members of armed forces-Such complaints should be thoroughly enquired into-Victim should be suitably compensated by the State-Requisite sanction u/s 6 should be granted for proceeding against the person/persons responsible for such violation.
       Held : In order that the people may feel assured that there is an effective check against misuse or abuse of powers by the members of the armed forces it is necessary that a complaint containing an allegation about misuse or abuse of the powers conferred under the Central Act should be thoroughly inquired into and, if it is found that there is substance in the allegation, the victim should be suitably compensated by the State and the requisite sanction under Section 6 of the Central Act should be granted for institution of prosecution and/or a civil suit or other proceeding against the person/persons responsible for such violation. (Para 51)
       (x) Assam Disturbed Areas Act, 1955-Sections 3 to 6-Validity of-Challenged-Provisions declared as valid-Held, in pith and substance the State Act is a law enacted in exercise of powers under Entry I of List II relating to public order.
       Held : The considerations governing the exercise of the powers conferred under Sections 3 to 6 of the Central Act indicated above will also apply to exercise of powers conferred under Sections 3 to 6 of the State Act. The directions Nos. (i) and (ii) given by the Gauhati High Court in its judgment dated March 20, 1991 cannot be sustained and must be set aside. [Paras 61 (25-26)]
       (xi) Constitution of India-Article 248 r/w Entry 97 of Union List-While examining legislative competence of Parliament to make a law-What is required to be seen is whether subject matter falls in State List-If law does not fall in State List-Parliament would have legislative competence to pass the law by virtue of residuary powers-It would not be necessary to go into the question whether it falls under any entry in Union List or concurrent list. (Para 15)

Judgement Key Points

The statement you provided appears to be a paraphrased summary of legal principles related to the state's obligations in disturbed areas where constitutional machinery has broken down. It reflects the general judicial understanding that during periods of active conflict or disturbance, the enforcement of fundamental rights may be temporarily limited, and the state's primary duty is to restore order through reasonable efforts (!) .

This principle recognizes that temporary disruptions are inevitable during the process of restoring normalcy and cannot be equated with violations of constitutional obligations, as long as the efforts made are reasonable and aimed at re-establishing the rule of law (!) .

Therefore, while the specific wording of the statement may not directly appear in a particular judgment, the underlying legal doctrine aligns with established judicial principles concerning the state's responsibilities in disturbed areas (!) .

(!) General legal principles regarding state obligations during disturbances
(!) Judicial recognition of temporary disruptions and efforts to restore order
(!) Theoretical understanding of constitutional obligations in exceptional circumstances

JUDGMENT

S.C. Agrawal, J.

1. These writ petitions and appeals raise common questions relating to the validity of the Armed Forces (Special Powers) Act, 1958 (as amended) enacted by Parliament (hereinafter referred to as 'the Central Act') and the Assam Disturbed Areas Act, 1955 enacted by the State Legislature of Assam (hereinafter referred to as 'the State Act').

2. The Central Act was enacted in 1958 to enable certain special powers to be conferred upon the members of the armed forces in the disturbed areas in the State of Assam and the Union Territory of Manipur. By Act 7 of 1972 and Act 69 of 1985 the Central Act was amended and it extends to the whole of the State of Arunachal Pradesh, Assam, Manipur, Meghalya, Mizoram, Nagaland and Tripura. The expression "disturbed area" has been defined in Section 2(b) to mean an area which is for the time being declared by notification under Section 3 to be a disturbed area. Section 3 makes provision for issuance of a notification declaring the whole or any part of State or Union Territory to which the Act is applicable to be a disturbed area. In the said provision, as originally enacted, the power to issue the notification was only conferred on the Governor of the State or the Administrator of the Union Territory. By the Amendment Act of 1972 power to issue a notification under the said provision can also be exercised by the Central Government. Under Section 4 a Commissioned Officer, Warrant Officer, Non-Commissioned Officer or any other person of equivalent rank in the armed forces has been conferred special powers in the disturbed areas in respect of matters specified in Clauses (a) to (d) of the said section. Section 5 imposes a requirement that a person arrested in exercise of the powers conferred under the Act must be handed over to the officer incharge of the nearest police station together with a report of the circumstances occasioning the arrest. 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.

3. The State Act was enacted with a view to make better provision for the suppression of disorder and for restoration and maintenance of public order in the disturbed areas in Assam. Section 2 of the State Act also defines disturbed area to mean an area which is for the time being declared by notification under Section 3 to be a disturbed area. Section 3 lays down that the State Government may, by notification in the official gazette of Assam, declare the whole or any part of any district of Assam, as may be specified in the notification, to be a disturbed area. Sections 4 and 5 confer on a Magistrate or Police Officer not below the rank of Sub-Inspector or Havildar in case: of Armed Branch of the Police or any officer of the Assam Rifles not below the rank of Havildar/Jamadar powers similar to those conferred under Clauses (a) and (b) of Section 4 of the Central Act. Section 6 confers protection similar to that conferred by Section 5 of the Central Act.

4. C.A. Nos. 721-724 of 1985 arise out of the writ petitions [Civil Rule Nos. 182 of 1980, 192 of 1980 and 203 of 1980] filed in the Gauhati High Court.

5. In Civil Rule Nos. 182 of 1980 and 192 of 1980 the validity of the Central Act as well as the State Act and the notifications dated April 5, 1980 issued thereunder were challenged, while in Civil Rule No. 203 of 1980 the proclamation dated December 14, 1979 issued by the President under Article 356 of the Constitution and the Assam Preventive Detention Ordinance, 1980 were challenged. In Civil Rule No. 182 of 1980 a learned Single Judge of the High Court passed an ex-parte order staying the notification dated April 5, 1980 issued by the Government of Assam under the Central Act. An appeal was filed against the said

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1997 Supreme(SC) 1551

IMPORTANT POINTParliament was competent to enact the Armed Forces (Special Powers) Act, 1958, in exercise of the legislative power conferred on it under Entry 2 of List I and Article 248 r/w Entry 97 of List I of the Constitution of India.

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IMPORTANT POINT
Parliament was competent to enact the Armed Forces (Special Powers) Act, 1958, in exercise of the legislative power conferred on it under Entry 2 of List I and Article 248 r/w Entry 97 of List I of the Constitution of India.