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1988 Supreme(Gau) 192
GAUHATI HIGH COURT
RAGHUVIR, C.J., B. L. HANSARIA AND J. SANGMA, JJ.
Border Security Force (B.S.F.) -Appellant
Versus
State of Meghalaya and others -Respondent
Civil Rules Nos. 972 of 1987 and 323 of 1988
Decided On : 07-10-1988
J. P. Bhattacharjee, A. M. Mazumdar and A. A. Mir, N. M. Lahiri, Advocate General, Meghalaya, A. Sarma, Govt. Adv.; Meghalaya, Sheikh Chand Mohammad, Sr. Central Govt. Standing Counsel B. Datt, The Addl. Solicitor General of India, for Union of India
The State Government has the power to appoint a Commission of Inquiry to investigate communal disturbances, even if armed forces were deployed in aid of civil power.
Headnote:
COMMISSIONS OF INQUIRY ACT - APPOINTMENT OF COMMISSION - POWER OF STATE GOVERNMENT - ENTRY 1 OF LIST II AND ENTRY 2A OF LIST I OF THE SEVENTH SCHEDULE TO THE CONSTITUTION - INTERPRETATION.
Fact of the Case:
The State of Meghalaya appointed a one-man Inquiry Commission to report on the causes and nature of communal disturbances in Baghmara town on April 14, 1987. The Border Security Force (BSF) challenged the appointment of the Commission, arguing that the State Government lacked the authority to inquire into the actions of BSF officers.
Finding of the Court:
The Court held that the State Government had the power to appoint the Commission under the Commissions of Inquiry Act, 1952. The Court interpreted Entry 1 of List II and Entry 2A of List I of the Seventh Schedule to the Constitution and held that the State Government's power to maintain law and order was not affected by the deployment of armed forces in aid of civil power.
Issues: 1. Whether the State Government had the power to appoint a Commission of Inquiry to investigate the communal disturbances in Baghmara town. 2. Whether the deployment of armed forces in aid of civil power deprived the State Government of its power to maintain law and order.
Ratio Decidendi: 1. The Court held that the State Government had the power to appoint the Commission of Inquiry under the Commissions of Inquiry Act, 1952. The Court interpreted Entry 1 of List II and Entry 2A of List I of the Seventh Schedule to the Constitution and held that the State Government's power to maintain law and order was not affected by the deployment of armed forces in aid of civil power. 2. The Court held that the State Government's power to maintain law and order was not affected by the deployment of armed forces in aid of civil power.
Final Decision: The Court dismissed the BSF's writ petitions and upheld the appointment of the Commission of Inquiry.
A. RAGHUVIR C. J. : - Baghmara is the Head Quarter of a Revenue Sub-Division in West Garo Hills of Meghalaya State. This town is on the Bangladesh border and is situate between International border pillars 1143 and 1158. The town is divided by a P.W.D. Road. Along the two sides of the highway there is a bazar. Near the bazar there is Police Station, a Primary School building and residential quarter of the Sub-Divisional Officer. The inhabitants of the town speak more than one language and follow different customs and celebrate festivals in their day to day life.
2. On April 14, 1987 the Rishi Community of the town were celebrating Charak Puja in the Primary School building. The establishment apprehended disturbance to peace and tranquillity in the town therefore alerted the law enforcement agencies.- The Sub-divisional Officer who is also an Executive Magistrate was present in the town. The incharge officer of the Police Station was at the Thana. The Deputy Superintendent of Police arrived in the town at the behest of Superintendent of police. The three were present at the Police Station when puja was celebrated at 1600 hours of the day. Few hours after Puja the town experienced serious communal disturbance. For reasons which will become later clear the further details of the disturbance are not set out in the judgment. Suffice however to state a senior Sub-Inspector (Sardul Singh) of Border Security Force (BSF) stationed in the town opened fire on a crowd near a place called MT garage at 2115 hours. The following day on April 15 the senior Sub-Inspector lodged a first information report at the Police Station which is registered as P. S. Case No. 20/87 under Ss.147, 148, 323, 353, 427 of Indian Penal Code.
3. The State of Meghalaya on July 10, 1987 (in the impugned order) appointed District Judge, Shillong a one man Inquiry Commission to report on the causes and nature of the disturbances at Baghmara on the date; the circumstances under which the fire was opened by the BSF and action taken thereafter; the allegations of excesses by the Police and BSF in dealing with the situation ; and any other circumstances which to the Commission may appear to be relevant. The inquiry was to be held under the Commissions of Inquiry Central Act 60 of 1952.
4. The Commission after having made the necessary proclamations invited statements by all concerned on August 27, 1987. Six or seven organisations submitted memoranda before the Commission. On September 7, 1987 the BSF raised a preliminary objection questioning the legal authority of Meghalaya to inquire on a subject which only the Union of India alone can enquire and prayed a months time to submit their written statement in the event of the preliminary objection was rejected. The Commission did not decide the objection. The inquiry was adjourned to September 27 for filing the written statement.
5. On September 16, 1987 a Writ Petition is filed in this Court Civil Rule No. 972/87 by BSF to quash the impugned order and to interdict the Commission to desist from further inquiry. This Court on September 18, 1987 ordered the Commission to dispose of the preliminary objection and the objection was heard, on September 18 and on November 6, 1987. Two orders of the Government of India were filed before the Commission at the hearing - one is dated September 23, 1969 the other is of June 25, 1973 issued by the Ministry of Home Affairs to support the objection. In the former order instructions to the Director General, Border Security Force, were issued and it is recited : "No inquiry shall be ordered by the State Government into any action taken by a person subject to the BSF Act in the maintenance of public order." The Commission heard the counsel for BSF and ordered evidence is necessary to decide the objection therefore examined on November 30, 1987 three witnesses - Dibila Marak, the Sub-Divisional Officer, N. Ch. Marak in-charge of the P. S. and T. A. Marak the DSP referred to earlier.
6. T
