report of the committee, headed by justice (retd) b.p. jeevan reddy, to review the armed forces...

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REPORT OF THECOM M ITTEE TO REVIEW THE

ARMED FORCES SPECIAL POW ERS)ACT, 1958

GOVERN MENT OF INDIAMINISTRY OF HOME AFFAIRS2005



ONT NTS

PageNo

Part-I Introduction 4-9

Part-II Legal and Constitutional aspects 10-41

Part-Ill Feed back received by the CommitteeRepresentations, public hearings, etc.) 42-66

Part-IV Recommendations 67-81

Part-V Draft Chapter to be inserted in theUnlawful Activities Prevention)Act, 1967 82-90

Annexures - I to XIV 92-147

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THE COMMITTEE TO REVIEW THE ARMED FORCESSPECIAL POWERS) ACT, 1958.

The Report of the Committee is submitted for kind consideration.

Dr. S.B.NakadeMember

,2cof bi Jurt ShrivastavMember

fft^o.J .Ottr auU

Lt. Gen . Retd) V.R.RaghavanMember

K '/'/Ssanjoy Haza rikaMember

Justice Retd) B.P.Jeevan Reddy x - Chairman



P ART- IINTRODUCTION

BackgroundIn the wake of the intense agitation launched by various

civil society groups in Manipur following the death of Kr. Th.Manorama Devi on 11.7.2004 while in the custody of the AssamRifles, and the earlier indefinite fast undertaken by Ms. IromSharmila since 2001 demanding repeal of the Armed Forces(Special Powers) Act, 1958 (hereinafter referred to AFSPA), theUnion Home Minister visited Manipur in September 2004 andreviewed the situation with the officers of the State Govt. and theSecurity/Intell igence agencies. During this visit Apunba Lup andmany delegations and cit izen groups raised a demand forrevocation of the AFSPA. There were other groups whodemanded a review of the Act or favoured retaining the Act.During the visit of the Prime Minister to Manipur in, November2004, several organizations including the Apunba Lup and manyother individuals met the Prime Minister with similar pleas. ThePrime Minister assured them tha t the Cen tral Govt. wouldconsider their demand sympathetical ly.2. The Central Go vernm ent, accordingly, set up a 5-Mem berCommittee (vide Ministry of Home Affairs Office Order No.11011/97/2004-NE-I I I dated 19 th November, 2004 - Copy atA n n e x u r e - I under the Chairmanship of Justice B.P. JeevanReddy, former Judge of the Supreme Court with the fol lowingfour Members: -(a) Dr. S.B. Nakade, Former Vice Chancellor and Jurist.(b)Shri .P.Shrivastav,IAS(Retd),FormerSpecial Secretary,MHA

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53. The term s of reference for the Co mm ittee are as follo w s: -

Kee ping in view the legit im ate concerns of the peop le ofthe North Eastern Region, the need to foster Human Rights,keeping in perspective the imperatives of security andmaintenance of public order to review the provisions of theArmed Forces (Special Powers) Act, 1958 as amended in 1972and to advise the Govt. of India whether-

(a) To amend the provisions of the Act to bring them inconsonance with the obligations of the Govt. towards protectionof Human Rights; or

(b)To replace the Act by a more humane Act.

The Committee may interact with representatives of socialgroups, State Governments and concerned agencies of CentralGovt./State Govt. legal experts and individuals, as deemednecessary by the Committee in connection with the review of theArmed Forces (Special Powers) Act, 1958 as amended in 1972.

The Committee will meet as often as required and visit theNorth Eastern region, if felt necessary .

Deliberations of the Committee and its interaction withstakeholders:4. The Co mm ittee held its f irst m eeting on 24.1 1.200 4 andsecond meeting on 26.11.2004 and deliberated on its terms ofreference of the Committee and procedure to be followed for itswork. In its third meeting held on 8.12.2004, it was decided to



call for represen tations from the general public. A notice waspublished in all the national dailies and regional papers on10.12.2004, which, inter-alia read as under: -

The Co mm ittee has decided to call for representations onwh ether it should be recomm end to the Governm ent of India to :

(i) amend the provisions of the Act to bring the m inconsonance with the obligations of the government towardsprotection of Human Rights.

Or(i i) replace the Act by a more hum ane legislation.

The Committee invites individuals, organisations, parties,inst i tut ions and al l non-governmental organisat ions interested nthe issue to send their.responses within 30 days at the aboveaddress.

The Committee proposes to visit the North-East beginning withManipur on 27th December, 2004. The timings and venue of themeetings of the Committee shall be intimated later. All thoseinterested are invited to present their views in writ ing as well asin person on the dates to be specif ied in due course through themedia .

5. The off ice and other infrastructure of the Committee came upmuch later during the last week of December 2004 . The



boycott the visit of the Committee. Despite the boycott call, alarge number of individuals, groups, organizations and Sawyersappea red before the Comm ittee and expressed the ir views onthe AFSPA freely. The GOC 17 Mountain Div. Imphal also gave adetailed presentation on the existence of various militant under-ground outf i ts and the role of the Army in containing theinsurgency. He just i f ied the powers and protect ion given to theArmed Forces under the AFSPA.6. During the second visi t of the Co m mittee to Man ipur, i tvisited the hil l districts of Manipur viz. Senapati andChurachandpur on Apri l , 20 to 23,2005. At these hearings,representatives of Nagas, Kukis, Zomis, Paites, and other, ethnicgroups appeared before the Committee and made writ ten andoral submissions.7. The C om m ittee visited Agartala in Tripura on February 8,2005. A few groups appeared and represented their views.8. In Assa m , a large num ber of people holding different shadesof opinion appeared before the Committee at Guwahati on Feb. 9& 10 , 20 05 . Groups of Lawyers, Un iversity stude nts, individualsand some tr ibal groups appeared before the Committee, seekingthe repeal of the Act. At Dibrugarh (Apri l 24/25, 2005), scholarsand teachers from the Dibrugarh University as well asprofessionals and business representatives expressed their viewsfavouring repeal of the Act.9. In Me ghalaya, (Shillong - Feb. 11 ,20 05 ), the DirectorGeneral Assam Rifles, gave a pres en tation on the need forretaining the AFSPA. A few c itizen groups and individualsappe ared at the hearings and expressed the ir view s. The Act is

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810. In Nagaland (Kohima - March 21 & 22 , 20 05 ), the CivilSociety groups which appeared before the Committee stronglydemanded the repeal of the Act. The Naga Hills (then in Assam)was the first area to which the Act was applied in the year 1958to tackle insurgency. Several senior officials of the StateGovernment appeared and asked for the repeal of the Act.Earlier on March 2 1 , the DIG-Assam Rifles briefed the Co m m itteeon the current situation in the State and favoured the retentionof the Act.11. In Arunachal Pradesh (Khonsa - Ap ril 25 , 2005 ), theCommandant of the Assam Rifles and the Supdt. Of Police ofTirap distr ict recommended the retention of the Act, which wasapplicable only to the two eastern districts of Tirap andCh anglang, which have been declared as disturb ed area s . Asenior police official expressed his view that some areas of Lohitdistrict should also be brought under the purview of the Act.12. The Com m ittee organized public hearings at Delhi (Jan . 19-21 , 2005) where a large number of individuals, groups, NGOsand Human Rights' groups appeared before it. Most of themdemanded the repeal of the Act. In addition, the Committee wasbriefed by the Army Headquarters Delhi on 7.3.2005 by HQEastern Command (Kolkata) on Feb. 7, 2005), and by H.Q. BSFon May 7. 2005). The DG, CRPF, conveyed views of theorgan ization on January 2 1 , 2005 . All these Forces favou red theretention of the Act or, at any rate, to provide a legal mechanismdefining their powers during such operation and to provide fornecessary safeguards. Four State Governments, viz. Assam,Arunachal Pradesh. Meghalaya and Mizoram also conveyed theirviews in writing. While the Governments of Assam and Arunachal



Pradesh favoured the retention of the Act, the other two StateGovernments felt that there is no need for the Act any more.13. The Co m mittee held 13 m eetings, 17 public hearings andreceived briefings from 7 State agencies on the Act. In all, 54individuals, 51 organizations and 5 poli t ical parties submittedtheir views to the Committee at various public hearings. Therewere 169 men and 27 women who appeared before theCommittee at various places in the Northi-East and at New Delhi.We must say that while an overwhelming majority of the cit izengroups and individuals pleaded for repeal of the Act, they weref i rmly of the view at the same t ime, that the Army should remainto f igh t the insurg ents. When explained th at the continuan ce ofArmy's operations would require a legal mechanism, quite a fewof them agreed but suggested that such a mechanism shouldduly take into account the need to protect the rights andinterests of citizens as also of the State. Factual data regardingthe meetings, hearings and representations made by individuals,Civil Society groups, Human Rights organizations,etc. is availableatAnnexure I I .



PART I ILegal and Constitutional Aspects

CHAPTER- I

To meet the situation arising in certain parts of India onaccount of the part i t ion of the country in 1947, the Governmentof India issued four Ordinances viz., the Bengal Disturbed Areas(Special Powers of Armed Forces) Ordinance, 1947 (Act 11 of1947); the Assam Disturbed Areas (Special Powers of ArmedForces) Ordinance, 1947 (Act 14 of 1947); the East Punjab andDelhi Disturbed Areas (Special Powers of Armed Forces)Ordinance, 1947 (Act 17 of 1947); and the United ProvincesDisturbed Areas (Special Powers of Armed Forces) Ordinance,1947 (Act 22 of 194 7). These Ordinances were replaced by theArm ed Forces (Spec ial Powers) Ac t, 1948 being Act 3 of 194 8. Itis not necessary for us to notice the provisions of this Act for thereason that it was a temporary statute enacted for a period ofone year, though it continued ti l l i t was repealed by Act 36 of1957.2. The presen t Act was enacted by the Parliament in 1958 and

it was known init ially as Armed Forces (Assam and Manipur)Special Powers Act, 1958. The Act was preceded by an Ordinancecalled Armed Forces (Assam and Manipur) Special PowersOrdinance, 1958 promulgated by the President of India on 22-5-1958. The Act applied to the en tire State of Assam and theUnion Te rrito ry of Manipur. After the new States of Arunacha lPradesh, Me ghaiaya, M izoram, and Nagaland came into being,the Act was app ropriately adapted to apply to these States. TheAct has not been made applicable to any other State in the



3. Some observations regarding the situation obta ining in theNorth-east may not be out of order before referring to thefeedback received from each State.4. The Committee feels that agitations such as those inManipur and elsewhere are merely the symptoms of a malaise,which goes much deeper. The recurring phenomena of oneagitation after another over various issues and the fact thatpublic sentiments can be roused so easily and frequently tounleash unrest, confrontation and violence also points to deep-rooted causes wh ich are often not addressed. Unless the coreissues are tackled, any issue or non-issue may continue to tr iggeranother upsurge or agitat ion.5. The presen t ground realities need to be viewed in th econtext of the geo-political, socio-economic and ethnic factors as

impasse.6. As originally enacted, the power to declare an area to be a'disturbed area' was conferred only upon the State governments.By Act 7 of 1972, however, such a power was conferredcon curren tly upon the Central gov ernm ent. The reason forconferring such a power upon the Central government is stated inthe 'Objects and Reasons' appended to the Bill, which reads thus:"The Armed Forces (Assam and Manipur) Special Powers Act,1958 empowers only the Governors of the States and theAdministrators of the Union Territories to declare areas in theconcerned State of Union Te rritory as 'dis tur be d'. Keeping inview the duty of the Union under Article 355 of the Constitution,inter alia, to protect every State against internal disturbance, it is



2

have power to declare areas as 'disturbed', to enable its armedforces to exercise the special powers."

7. The Preamble to the Act, as amended, reads as follows:"An Act to enable certain special powers to be conferred uponmembers of the Armed Forces in disturbed areas in the State ofArunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram,Nagaland and Tripu ra."

Sub-section (2) of Section 1 the Act applies the Act to theStates mentioned in the preamble. Section 2 defines theexpressions 'Armed Forces' in clause (a) and 'disturbed areas' inclause (b ). They read as follows:"(a) 'Armed Forces' means the military force and the air forceoperating as land forces and includes any other armed force ofthe Union so operating.(Thus the Armed Forces established and maintained by the Unionalso fall within this definition.)"(b) 'Disturbed area' means an area which is for the time beingdeclared by notification under Section 3 to be a disturbed area."

Clause (c) of Section 2 says that all other words andexpressions used in the Act but not defined, but defined in the AirForce Act, 1950 or the Army Act, 1950 shall have the meaningsrespectively assigned to them in those Acts.8. Section 3 of the Act reads as follows:

Power to declare areas to be disturbed areas. If, in relationto any State or Union Territory to which this Act extends, the



3

opinion that the whole or any part of such State or UnionTerritory, as the case may be, is in such a disturbed or dangerouscondition that the use of armed forces in aid of the civil power isnecessary, the Governor of that State or the Administrator of thatUnion Terri tory or the Central Government, as the case may be,may, by notification in the Official Gazette, declare the whole orsuch part of such State or Union Terri tory to be a disturbedarea".9. Under this Section, i f the Go vernm ent of the State to whichthis Act applies is of the opinion, that whole or any part of suchState is in such a disturbed or dangerous condition that the useof arm ed forces in aid of civil power is necessary, it m ay , by anotification published in the official gazette, declare the whole ofthe State or part of the State to be a 'disturbe d are a'. Such apower can also be exercised by the central government by virtueof the 1972 Am endm ent Act. This Section, howe ver, does notspecif ical ly say either that the Governor may, after issuing adeclarat ion, request the Union government to depute the armedforces nor does it say expressly that the central governmentmay, on issuance of a notif ication under the Section, deputearmed forces to the State to act in aid of the civil power.Probably, these steps were thought to be implicit in the situation.10. Section 4 enum erates the special powers of the arm ed

forces, which are deployed in a State or a part of the State to actin aid of civil power. The Section reads as follow s:

" Special powers of the armed forces. Any commissionedofficer, warrant off icer, non-commissioned officer or any otherperson of equivalent rank in the armed forces may, in a disturbed



4

(a) if he is of opinion that it is necessary so to do for themaintenance of public order, after giving such due warning as hemay consider necessary fire upon or otherwise use force, even tothe causing of death, against any person who is acting incontravention of any law or order for the time being in force inthe disturbed area prohibit ing the assembly of f ive or morepersons or the carrying of weapons or of things capable of beingused as weapons or of f irearms, ammunition or explosivesubstances;

(b ) if he is of opinion that it is necessary so to do, destroy anyarms dump, prepared or forti f ied posit ion or shelter from whicharmed attacks are made or are likely to be made or areattempted to be made, or any structure used as training camp forarmed volunteers or uti l ised as a hideout by armed gangs orabsconders wanted for any offence;

(c) arrest, without warrant, any person who has committed acognizable offence or against whom a reasonable suspicion existsthat he has committed or is about to commit a cognizable offenceand may use such force as may be necessary to effect the arrest;

(d ) enter and search without warrant any premises to makeany such arrest as aforesaid or to recover any person believed tobe wrongful ly restrained or confined or any property reasonablysuspected to be stolen property or any arms, ammunit ion orexplosive substances believed to be unlawfully kept in suchpremises, and may for that purpose use such force as may benecessary."11. Under this Se ction, various powers are conferred upon anycommissioned officer, warrant off icer, non-commissioned officeror any other person of equivalent rank in the arm ed forces. Of



5

course, these powers are available only in an area notified as'distu rbe d are a' under Section 3. The power conferred by clause(a ) , can be better appreciated, if its essential ingredients areseparately set out:"(i) Where there is in force, in the disturbed area, a law or anorder prohibit ing the assembly of f ive or more persons or thecarrying of weapons or of things capable of being used asweapons or of f ire arms, ammunit ion or explosive substances;(i i) and a person is acting in contravention of any such law andorder,(i i i) any officer of the armed forces of the above named rank,may, if he is of the-opinion that it is necessary so to do for themaintenance of public order, after giving such due warnings ashe may consider necessary, f ire upon or otherwise use force evento the causing of death of such person."

12. I t is thu s clear tha t according to clause (a) of Section 4 , thepower to fire upon the persons is not unregulated or absolute.Such a power comes into play only where the ingredientsmentioned under (i) and (i i) are satisf ied and furthermore wheresuch officer of the armed forces is of the opinion that it isnecessary to fire upon such person(s) or to otherwise use forceagainst such person(s) for the purpose of maintaining publicorder. I t goes w itho ut saying tha t the "opinion ' m ust be form edhonestly and fairly.13. Clause (b) is of course indepe nde nt of clause (a ). The

requirement of a law or an order prohibit ing the assembly of f iveor more persons referred to in clause (a) is not necessary for



16fort if ied posit ion / shelter or any structure mentioned in theclause, if he is of the opinion that "it is necessary so to do".Though the clause expressly does not say, it necessarily meansthat such a course or action is necessary for effectivelydischarging their duties.

Clause (c) confers upon an officer of the armed forces thepower to arrest any person, without warrant, who has committedor who is reasonably suspected to have committed a cognizableoffence. Such power of arrest can also be exercised to p rev en t aperson who is 'ab ou t to com mit a cognizable offence'. This poweris com parable to the power conferred upon a police off icer byclause (a) of Section 41 of the Code of Criminal Procedure. Foreffecting such ar rest, the officer of the arm ed forces is alsoempowered to use such force as may be necessary. This power,however, is circumscribed by Section 5, which says that anyperson arrested and taken into custody under this Act shall bemade over to the off icer-in-charge of the nearest police station"with the least possible delay, together with a report of thecircumstances occasioning the arrest". The words "w ith theleast possible delay" in Section 5 appear to have raised a doubtin the minds of some persons that this may even exceed 24hours. We do not think there is any basis for such a doub tinasmuch as clause (2) of Article 22 of the of the Constitution ofIndia does cast such a du ty. Ind ee d, the said clause in theConstitution confers a right upon the person arrested anddetained in custody to be produced before the nearest Magistratewithin a period of 24 hours of such arrest excluding the timenecessary for journey from the place of arrest to the court ofMagistrate and further declares that such person shall not be



7

of a Ma gistrate. The constitutiona l right so conferred upon theperson arrested is available whether the arrest is made by anofficer of the arm ed forces or by the police. It is, the refore, clearbeyond doubt that a person arrested under clause (c) of Sectionhas to be produced before a Magistrate within 24 hours excludingthe time taken for journey from the place of arrest to the court ofMa gistrate. To put it more clearly, the person arres ted underclause (c) of Section 4 has to be produced before a Magistratewithin 24 hours of his arrest (excluding the time taken forjourney) and it is within this period that the officer of the armedforces who made the arrest shall hand over the person to thepolice and the police shall produce the person before theMa gistrate. In this connection, i t would be appro priate to noticeArticle 33 of the Constitution of India, which, as amended in1984, reads as fol lows:"Power of Parliament to modify the rights conferred bv this Partin their application to Forces, etc -Parl iament may, by law, determine to what extent any of therights conferred by this Part shall, in their application to, -

(a) the me mb ers of the Armed forces: or(b) the me m bers of the forces charged with the m aintenanceof public order; or

(c) persons employed in any bureau or other organisationestablished by the State for purposes of intelligence cr counter-intel l igence; or



8

(d) persons employed in, or in connection w i th , thetelecommunication system set up for the purpose of any Force,bureau or organisation referred to in clauses (a) to (c); berestricted or abrogated so as to ensure the proper discharge oftheir duties and the maintenance of discipline among them.

14. Under this clause, the Parliament is em pow ered to make alaw determining "to what extent any of the right conferred by thisPart shall, in their application to (a) the members of the Armedforces or (b) the members of the armed forces charged with themaintenance of public order", be restricted or abrogated so as toensure the proper discharge of the ir duties . But it is not b roug htto our notice that the Parliament has chosen to make any suchlaw modifying or qualifying the right conferred by clause (2) ofArticle 22 upon the person arrested where he is arrested by themembers of the Armed forces or of the Forces charged with themaintenan ce of public order. It is, the refo re, clear th at the rightconferred by clause (2) of Article 22 upon a person arrested to beproduced before the Magistrate within 24 hours (excluding thetime for journey) remains untrammeled and unaffected and has,therefore, to be obeyed.15, Clause (d) of Section 4 of the Act confers upon the o fficer

of the Armed Forces (mentioned in the Section) the power toenter and search without warrant to make an arrest under clause(c) of Section 4 or to recover person wrongfully detained or torecover any property suspected to be stolen property or anyarms, am m un it ion , etc., kept unlawfully. He is also empoweredto use such force as is necessary for the said purpose.



9

16. Section 6 confers a protection upon the persons actingunder the Act. No su it, prosecution or other legal proceeding canbe instituted against such person "in respect of anything done orpurported to be done in exercise of the powers conferred by thisAct", except with the previous sanction of the centralgovernment.



20C HA PT ER I I ;

Article 355 of the Consti tut ion places an obl igation upon theUnion of India to protect every State "against external aggressionand internal d isturbance and to ensure that the government ofevery State is carr ied on in accordance with the provisions of thisCons t i tu t ion. Prior to the Const i tu t ion (44th Am en dm en t) Act ,Art icle 355 was relevant both for the purpose of Art icle 352 aswell as Art icle 356 . Under Art icle 352 (as i t ob tain ed prio r to thesaid Amendment Act) , " the President, i f sat isf ied that a graveemergency exists whereby the secur i ty of India or any part of theterr i tory thereof is threatened, whether by war or externalaggression or internal d isturbance," he could, by issuing apro clam at io n, ma ke a declarat ion to th at ef fect . In sh ort , hecould proclaim emergency and assume the powers ment ioned inthe said Art ic le. The expressions 'exte rnal agg ress ion' and' in terna l d is turbance ' were common to both Ar t ic le 355 andArt ic le 35 2. Sim i lar ly, if the Gove rnm en t of a State was notcarr ied on in accordance wi th the provis ions of the Const i tut ion,the President could take action under Art icle 356 and assume tohimsel f the powers of the government of that State and exerciseoth er powe rs me nt io ne d in th at Art ic le. Howe ver, by Const i tu t ion(44 t h Amendment) Act , the express ion ' in terna l d is turbance ' inArt ic le 352 (1) was su bst i tu ted by the expression 'a rm edrebel l ion' . With th is the connect ion between Art ic les 355 and 352go t snap ped part ia l ly. In oth er wo rds , in case th e sec urity ofIndia or a part thereof is threatened by internal d isturbance in aSt ate , th e po we r un de r Art icle 352 may not be ava i lable . Evenso, the obl igat ion of the Union government to protect every Statefrom internal d isturbance remains; i t is now an independent



2

obligation to be performed in such a manner as the Uniongovernment thinks appropriate.2. By the Co nstitution (42 nd Amendment) Act, the Parl iamentbrought in the fol lowing provisions/amendments, which arerelevant to our purpose. Article 257A was introduce d prov idingfor assistance to States by deployment of armed forces or otherforces of the Union. The said Article, which was deleted by theConsti tut ion (44 thAm endm ent) Act, read as fol low s:

"257-Assistance to States by deployment of armed forces orother forces of the Union. (1) The Government of India maydeploy any armed force of the Union or any other force subject tothe control of the Union for dealing with any grave situation oflaw and order in any State.

(2) Any armed force or other force of any contingent or unitthereof deployed under clause (1) in any State shall act inaccordance with such directions as the Government of India mayissue and shall not, save as otherwise provided in suchdirections, be subject to the superintendence or control of theState Government or any off icer or authority subordinate to theState Government.

(3) Parl iament may, by law, specify the powers, functions,privileges and liabil ities of the members of any force or anycontingent or unit thereof deployed under clause (1) during theperiod of such deployment."3. Along w ith Article 257A , Parliament had also introdu cedEntry 2A in the Union List in the Seventh Schedule to theC on stitution . This en try, howeve r, has not been deleted by theConsti tut ion (44 thAm end m ent) Act. It reads as fol lows :



22"2-A. Deployment of any armed force of the Union or any otherforce subject to the control of the Union or any contingent or unitthereof in any State in aid of the civi l power, powers, jurisdiction,privileges and liabilit ies of the members of such forces while onsuch deployment."

Entry 1 in List II (State List) read as follows before theConstitution (42 n d Amendment) Act :"(1) 'Public order' (but not including the use of naval, mil i tary orair force or any other armed force of the Union in aid of the civilpower)" .

By the said Amendment, however, the said Entry was amendedto read as follows:"(1) 'Public order' (but not including the use of any naval, mil i taryor air force or any other armed force of the Union or of any otherforce subject to the control of the Union or of any contingent orunit thereof in aid of civi l power)".

4. It may be noticed tha t Entry 2A in the Union List does notrefer to or use the expression 'public orde r'. Ind ee d, Art icle 257Acontemplated Government of India deploying the armed forces ofthe Union for "dea ling with any grave situation, of law and orderin any State" - a grave encroachment into the domain reservedto the States under the Co nst i tut ion. (Under the Co nst i tut ion,law and order as well as public order are both within theexclusive p rovince of the States. Even whe re the a rme d forces ofthe Union are deployed in aid of the civi l power of the State tomaintain public order - whether on the basis of a request for



23made by the Union government acting under a law made underEntry 2 A of the Union List, the law and order and public orderye t rema in w ithin the dom ain of the States.) In fact Article 257Adid not use the words "in aid of civil power" though the saidwords were used in Entry 2A which was simultaneouslyintroduced in the Union List. Of cou rse, these words we re therein Entry 1 of the State List even prior to the Constitution (42n dAm endm ent) Act and they rem ain even now. In this conn ection,one must bear in mind the dif ference between the concepts ' lawand order', 'public order', ' internal disturbance' and 'armedrebellion' - all the expressions employed by our Constitution, aspointed out hereinabove.5. The aforeme ntioned provisions are me ntioned with a viewto clarify certain issues relevant to this Report. The first qu estionis , is there a distinction between "public order" (State List, item1) and "in terna l disturbanc e" referred to in Article 355? For thispurpose we have to examine the meaning and content of boththe expressions. As pointed ou t by the Supreme C ourt in thecase of Ram Manohar Lohia (1966 S.C), "law and order" is alarger circle within which public order constitutes a smallercircle.(The concept of "security of the State" was said to be a yetanothe r sm aller circle with in public order-'conce ntric circles'. Thiswas so held in the context of the language in the then prevailingPreventive Detention law). For example, a simple murder is a lawand order problem but where a murder is committed oncommunal grounds, which is meant to or designed to create afear and a feeling of insecurity in one or more comm unit ies, i tbecomes a 'pub lic orde r' issue. A com m una l clash is a 'pub licorder' problem but where, say, the communal clashes take placeon a large scale, affecting an entire State or a part of the State,



24

paralyzing the administration, i t would be a case of "internaldisturbanc e". Now, coming to the meaning and conten t of theexpression "internal disturbance", i t is necessary to turn toConstituent Assembly debates, in the absence of a judicialpronouncement.6. We may firs t refer to the speech of Dr B.R.Am bedkar in theConstituent Assembly, explaining the principle behind Article 355.He said:

"When once the Constitution makes the provinces sovereign and givesthem plenary powers to make any law for the peace, order and goodgovernment of the province, really speaking, the intervention of the Centre orany other authority must be deemed to be barred, because that would be aninvasion of the sovereign authority of the province. Tha t is a funda me ntalproposition which we must accept by reason of the fact that we have a FederalCo nstitution. That being so, if the Centre is to interfere in the ad m inistration ofprovincial affairs, it must be by and under some obligation, which theCo nstitution imposes upon the Centre. [The ] article. ...says th at it shall be thedu ty of the Union to prote ct every un it Sim ilar clauses appear in theAm erican Co ns titution. They also occur in the Australian Co nstitutio n wherethe Constitution, in express terms, provides that it shall be the duty of theCentral Government to protect the units or the States from externalaggression or interna l com m otion. A tha t we propose to do is to add onemore clause to the principle enunciated in the American and AustralianConstitutions, namely, that it shall be the duty of the Union to maintain theCo nstitution in the provinces as enacted by this law ." (C.A.D .Vol.IX. P. 133)

7. The provisions of the Am erican and Aus tral ianConstitutions, which Dr. Ambedkar referred to, may also be setout for a clear understanding of the meaning of the expression'inter na l disturban ce'. Article V I (4) of the US Co nstitution says"the United States shall guarantee to every State in the Union arepublican form of government and shall protect each of themagainst invasion and on application of the Legislature or of theExecutive when the Legislature cannot be convened, againstdom estic violence". Sim ilarly, Section 119 of the Austral ianConstitution Act says, "the Commonwealth shall protect everyState against domes tic violence". It would be seen th at b oth the



25

'domestic violence', though under the US Constitution, thefederal government steps in the case of domestic violence only atthe request of the State or Legislature of the State concerned. Asagainst these provisions, Article 355 empowers the Union to acton its own i.e., without a request from the State Government, toprotec t the State from internal disturbance . We may refer inthis connection to the speech of Sri Alladi Krishnasw ami Ayyar inthe Constituent Assembly aswel l . Speaking upon this Ar ticle, SriAlladi said: "Therefore, i t is the duty of the Union Government toprotect States against external aggression, internal disturbanceand domestic chaos and to see that the Constitution is worked ina proper manner both in the States and in the Union" (C.A.D.Vol.IX.P.150). It would therefore be legit imate for us to infer thatthe expression ' internal disturbance' means ' internal commotion'(the expression used by Dr Ambedkar in the above speech)'domestic violence' (expression used in both the American andAustral ian Constitutions) and 'domestic chaos' (the expressionused by Sri Alladi Krishnaswami Ayyar in the ConstituentAssembly during the debate on the said Article.8. It there fore follows tha t every 'public ord er' problem doesnot necessari ly amount to "internal disturbance" while theconverse may be true i.e., in case of' internal disturbance', publicorde r is bound to be affected . The du ty and power of the C entralGovernment under Article 355 comes into play only in case of"internal disturbance" i .e., 'domestic chaos' or ' internalco m m otio n'. The said power is not available in each and everyproblem of public order. "In tern al disturb an ce" means fai lure ofpublic order on a large scale and in a sustained manner, forwhatever reason it may be, affecting the entire State or part ofthe Sta te. The expression "inte rna l disturb an ce" i tself is



26expressive of the level of disturbance, chaos and commotion itcontem plates. It must be remem bered tha t prior to the 44 thAmendment, ' internal disturbance' was one of the grounds onwhich the President could proclaim emergency under Art.352.This consideration also induces to hold that "internal disturbance"connotes disturbances on a large, on a sustained and seriouslevel and is distinct and different from issues of public orderwhich arise from time to t ime in one or the other place, vi l lage,tow n or city of a Sta te. In the la tter type of cases, it is for theState Go vernm ent to tackle it . I t is for the State Gove rnm ent todecide, in a given case, whether it requires the help of armedforces/para-military forces of the -Union to help tackle it. Indeed,if it is of a purely local level, the Executive Magistrate (of thehighest rank) can deal with it under Section 130 of the Code ofCriminal Procedure.9. The above distinction between the "pub lic ord er" in en try 1of List II of the Seventh Schedule to the Constitution and"inte rna l disturba nce " referred to in Art icle 355 has to be kept inmind and observed, in the interest of preserving the federalcharacter of our Constitution and to ensure that the f ieldreserved to the States under our Constitution is not trenchedupon by the Centre. Art icle 257-A was a serious, and anunbelievable encroachment upon the powers of the State (Dr.Ambedkar referred to them as the sovereign and plenary powersof the States) and it is good that it was repealed soon enough.

10. In this conn ection, it is relevant to point out that entry 2A in the Union Listspeaks of deployment of the armed forces of the Union in any State in aid ofcivil power but it does not speak of or refer to pub lic orde r . It onlyempowers the Union to make a law providing for such deployment and their



pow ers and procedures. It does not and cannot trench upon the power and27

entry 1 in the State List reads: 1 . Public Order (but not including the use ofthe army, nava l, military or air force in aid of civil power) . It meansthat the State cannot make a law with respect to the deployment of the armedforces, while it can legislate with respect to public order. The State can, nodoubt, request the Central Government to send its armed forces for maintainingpublic order but it cannot itself direct such deployment.



28

CHAPTER-HI

The Unlawful Activities (Prevention) Act, 1967fas amended bv the Unlawful Activities (Prevention)Amendment Act. 2004) - A Cognate Legislation.



29

The ULP Act was enacted by the Parliament in 1967 toconfer powers upon the State authorit ies to deal with activit iesdirected against the integ rity and sovereignty of Ind ia. The Actdefined 'unla w ful activ ity' in clause (o) of Section 2. In sho rt, itmeant any action taken by an individual or an association, inwhatever manner, " intended, or supports any claim, to bringabout, on any ground whatsoever", the cession of a part of theterritory of India or cession of a part of territory of India from theUnion or which disclaims, disrupts or is intended to disrupt thesovereignty and territorial integrity of India or which causes or isintended to cause disaffection against Ind ia. The expression'unlawful organisation is defined in clause (p) to mean that anyassociation which has the objective of carrying on any unlawfulactivity or any activity punishable under Section 153A or 153B ofthe Indian Penal Code or which encourages or aids any person tound ertake such ac tivity . The Act provided for declaring anassociation as unlawful association whereupon certainconsequences provided in Sections 10 to 14 in Chapter IIIfo l lowed. The declara tion as an unlaw ful association sha ll,however, be subject to scrutiny by a tribunal constituted underSection 5 whose decision was binding upon the gov ern m en t. Thegovernment was also empowered to prohibit the use of funds ofan unlawful association and also to notify places where suchactivit ies take place.2. In the year 20 04 , the Parliam ent repealed the Preven tion ofTerrorist Activit ies Act and simultaneously introduced certainprovisions / chapters into ULP Act to curb terr oris t ac tivit ies. Aschedule is also added containing a list of 'terrorist



30Terrorist act' carries the meaning assigned to it in Section 15,which is introduced in the year 2004 by way of Chapter IV.Section 15, which defines a 'terrorist act', reads as fol lows:

"15 . Terror ist act - Whoever, with intent to threaten theunity, integrity, security or sovereignty of India or to strike terrorin the people or any section of the people in India or in anyforeign country, does any act by using bombs, dynamite or otherexplosive substances or inflammable substances or firearms orother lethal weapons or poisons or noxious gases or otherchemicals or by any other substances (whether biological orotherwise) of a hazardous nature, in such a manner as to cause,or likely to cause, death of, or injuries to any person or personsor loss of, or damage to, or destruction of, property or disruptionof any supplies or services essential to the l i fe of the communityin India or in any foreign country or causes damage ordestruction of any property or equipment used or intended to beused for the defence of India or in connection with any otherpurposes of the Government of India, any State Government orany of their agencies, or detains any person and threatens to ki l lor injure such person in order to compel the Government in Indiaor the Government of a foreign country or any other person to door abstain from doing any act, commits a terrorist act."3. When ana lysed , the section yields the fol lowing ingre dien ts:( i ) whoever, with intent to threaten the unity, integri ty, securi tyor sove reign ty of Ind ia o_r to st rike te rro r in the people or anysection of the people in India or in any foreign country, (i i) doesany a_t by using bom bs and othe r explosives / inflam m ab lesubstances, fire arms, etc., (i i i) in such a manner as to cause or



31any supplies or services essential to the life of the community ofIndia or in any foreign country or causes damage or destructionof the property or equipment used or intended to be used for thedefence of India or in connection with any other purposes of theGovernment of India, any State Government or any of theiragencies or detains any person(s) and threatens to kill or injuresuch person in order to compel the Government of India or theGovernment of a foreign country or any other person to do orabstain from doing any act, ( iv) comm its a terro rist act. In s hort,the first portion deals with the intent, the second portion dealswith the act and the third ingredient deals with the effect or l ikelyeffect. If all these three ingredients men tioned unde r (i) to (i i i)are satisfied, it am oun ts to a 'terro rist act'. Section 16 providespunishment for terrorist act while Section 17 providespunishment for raising funds for the purpose of committing ater roris t act. A conspiracy towa rds the same objec tive ispunishable under Section 18. Section 19 punishes those whovoluntarily harbour or conceal or attempt to harbour or concealany ter ror ist. Section 20 provides pun ishm ent for being am em ber of a terror ist gang or terror ist organisation. Section 21punishes any person holding proceeds of terrorism while Section22 provides pun ishm en t for threatening the witnesses . Section23 provides for enhanced penalties in certain situationsment ioned therein.4. Chapter V commencing w ith Section 24 provides for

forfe iture of proceeds of terro rism . Section 25 specifies thepowers of the investigating officer and designated authority andalso provides for an appeal against an order of the designatedau tho rity. Section 26 empowers the Cou rt also to forfe it the



3227 prescribes the procedure to be followed before forfeit ing theproceeds of terrorism while Section 28 provides an appealaga inst an order made under Section 26. Sections 29 to 34 aremachinery provisions, which need not be detailed herein.5. Chapter V I wh ich has also been introduced by the 2004Am endm en t Act deals w ith terro rist associations. The Cen tralGovernment is empowered, by an order published in he officialgazette to add an organisation to the schedule or to remove anorganisation therefrom and/or to amend the schedule in suchother manner as i t may think appropr iate (S 3 5 ( l ) ) . Sub-sect ion(3) of Section 35 says that an organisation shall be deemed to be.involved in terrorism if it commits or participates in acts ofterror ism or prepares for terror ism or promotes or encouragesterror is m or is otherwise involved in terro r ism . Section 36provides for den otif ication of a terro rist orga nisa tion. Thissection provides for an application being made for removing anorganisation from the schedule to the Act and the procedure tobe follow ed the reo n. Section 37 obligates the Cen tralGovernment to constitute one or more review committees for thepurposes of Section 36 . Section 38 makes the m em bersh ip of aterrorist organisation a punishable offence while Section 39punishes a person giving any kind of support to a terror istorga nisation . Section 40 makes the raising of funds for te rror is torganisation a punishable offence.6. Chap ter V II contains miscellaneous provisions . Section 4 1says that an organisation shall not be deemed to have ceased toexist by reason only of any formal act of dissolution or change ofname but shall be deemed to continue so long as any actual



33of name or by mere formal act of dissolution, a terroristorganisation does not cease to exist, so long as its membershave the same objectives and purposes. Section 42 empow ersthe Central Government to delegate its powers under certainspecific sections upon State Go vernments. Section 43 deals withthe powers of investiga ting officers under the Act. Section 44deals w ith p rotection of witnesses. Section 45 says th at no Courtshall take cognizance of any offence under Chapters 4 and 6without the previous sanction of the Central Government or theState Go vernm ent as the case may be. Section 46 makes theevidence collected through interception of communicationsadm issible. Section 47 ba rs th e jurisdiction of any civil cou rt orother authority to question any proceedings taken or orderspassed unde r the Ac t. Section 48 gives an ove rriding effect tothe Act and the rules made thereunder over other enactments.7. Section 49 is releva nt and needs specific and a detailedment ion. It provides protection of action taken under the Act ingood fa i th . It reads as follows :" 4 9 . Protection of action taken in good faith - No su it,prosecution or other legal proceedings shall lie against -(a) the Central Government or a State Government or anyofficer or authority of the Central Government or State

Government or District Magistrate or any off icer authorized inthis behalf by the Government or the District Magistrate or anyother authority on whom powers have been conferred under thisAct, for anything which is in good faith done or purported to bedone in pursuance of this Act or any rule or order madethereunder; and(b) any serving or retired me mber of the arm ed forces or para-



34taken by him in good fa i th , in the course of any operationdirected towards combating terrorism.

8. It is worth while to note tha t while no provision in the Actspecifically refers to the deployment of any armed force or param ilitary force for achieving any, of the ob jectives of the A ct,clause (b) of Section 49 expressly gives protection to any servingor retired member of the armed forces or para military forces inrespect of any action taken or purported to be taken by him ingood fa i th , "in the course of any operation directed towardscom bating ter ro ris m ". Now, it is a well-established presu m ption- a presu m ption which is .aff irmed by innumerable decisions ofthe courts - that the Parliament does not make any provisionw ithou t a purpo se. None of the provisions in an Act can beunde rstood or construed as superfluous. If so, a question ariseswhy did the P arliament introduce clause (b) of Section .49? Whydid it think it necessary to provide a protection to "any serving orretired member of the armed forces or para military forces" inrespect of any action taken in good faith "in the course of anyoperat ion" directed towards com bating terrorism ? In ourconsidered opinion, this provision does contemplate, bynecessary implication, use of armed forces/para military forcesfor combating terrorism and also contemplates the armed forces/ para military forces conducting "operations" towards combatingter ror ism. This inten t must be read in the contex t of theSchedule appended to the Act wherein there are specificallyincluded quite a few organisations engaged in insurgency /m ilitanc y in the States of Assam, Manipur and Trip ura . As amatter of fact, the Act makes it clear that the terrorist activity is



35the Schedule; it means any and every activity of the kindmentioned in Section 15 carried on by any person, organisationor gang . This section indicates tha t the Parliamen t did take noteof the fact that in many cases it may be necessary to employ thearmed forces or para military forces to combat terrorism andterrorist activit ies. Indeed, the Parliament must have taken noteof the fact that armed forces and para-military forces werealready engaged in such operations against the organisationslisted in the Schedule and others engaging in similar activit ies. Atthe same time, it must be noted , the protection extended bySection 49 is not unc onditiona l. Both the clauses in (a) and (b)qualify and restrict the protection only to acts done in good fa i th.The expression "good fa i th" is indeed used in the heading of thesect ion, which circumstance also goes to emphasise the natureand extent of protection provided.9. Section 50 is in the natu re of saving clause, wh ich saysthat nothing in this Act shall affect the jurisdiction exercisable by,or the procedure applicable to, any Court or other authorityunder any law relating to the navy, army or air force or otherarm ed forces of the Union. Section 51 provides for imp ound ingof passport and arm licence of persons proceeded under the Act.Section 52 confers the rule making power upon the CentralGo vernm ent. Section 53 provides for orders and rules madeunder the Act to be laid before both Houses of Parliament.10. The schedu le, wh ich is referable to Section 2 (1 ) (m ) andSection 35 of the Ac t, gives a l ist of "te rro ris t orga niza tions". Wemay notice some of them, which are relevant for the purposes ofthis Co m m ittee. Serial Nos.12 and 13 speak of United Liberation



36

Nos.14, 15 , 16 , 17 and 18 me ntion the organisations operatingin Manipur. They are Peoples Liberation Army (PLA), UnitedNational Liberation Front (UNLF), Peoples Revolutionary Party ofKangleipak (PREPAK), Kangleipak Communist Party (KCP),Kanglei Yaol Kanba Lup (KYKL) and Manipur Peoples LiberationFront (MPLF) respectively. Item s 19 and 20 refer to All TripuraTiger Force and National Liberation Front of Tripura respectively.Al l of them are designated as "terrorist organisat ions" within themeaning of Sect ion 2 ( l) ( m ) and Section 35 of this Act. (For thepresent purposes it may not be necessary to mention theorganisation mentioned under serial Nos.l to 10 and 21 to 32.)11. The specif ic language in which "te rro rist ac t" is defined andthe terrorist activity is sought to be fought and curbed by use ofarmed forces and para-mil itary forces also, wherever necessary,coupled with the fact that several organisations in the States ofAssam, Manipur and Tripura are expressly l isted as "terroristorganizations", induces us to call the ULP Act a cognateenactment .



37

CHAPTER-IV

Other Statutory Provisions providing for assistance toArmed Forces.

Chapter 10 of the Criminal Procedure Code deals with'ma intenan ce of public order and tra nq uil ity '. Part A of theChapter deals w ith 'unlaw ful assem blies'. Section 129 em pow ersthe Executive Magistrate or the officer-in-charge of a policestation and any officer not below the rank of a Sub Inspector tocom m and an unlawful assembly to disperse and i f such unlawfulassembly does not so disperse, he may use such force as may benecessary for dispersing it. The named auth orities are alsoempowered to arrest and confine persons in order to dispersesuch unlawful assembly.2 . Section 130 provides for use of arme d forces to disperseunlawful assemblies, while Section 131 sets out the powers ofand the procedure to be followed by the armed forces' whiledispersing unlaw ful assemblies. Section 130 and 131 read asfol lows:

Section 130. Power of certain armed force officers to disperseassembly.(1) If any such assembly canno t be otherw ise dispersed,and if it is necessary for the public security that it should bedispersed, the Executive Magistrate of the highest rank who ispresent may cause it to be dispersed by the armed forces.(2) Such Magistrate may require any officer in com mand ofany group of persons belonging to the armed forces to disperse



38the assembly with the help of the armed forces under hiscommand, and to arrest and confine such persons forming part ofit as the Magistrate may direct, or as it may be necessary toarrest and confine in order to disperse the assembly or to havethem punished according to law.(3) Every such officer of the armed forces shall obey suchrequisition in such manner as he thinks fit, but in so doing heshall use as little force, and do as little injury to person andproperty, as may be consistent with dispersing the assembly andarresting and detaining such persons.Section 131. Protection against prosecution for acts done underpreceding sections.3. When the public secu rity is manifestly endangered by anysuch assembly and no Executive Magistrate can becommunicated w i th , any Commissioned or Gazetted Officer of thearmed forces may disperse such assembly with the help of thearmed forces under his command, and may arrest and confineany persons forming part of it in order to disperse such assemblyor that they may be punished according to law; but if, while he isacting under this section, it becomes practicable for him tocommunicate with an Executive Magistrate, he shall do so, andshall thenceforward obey the instructions of the Magistrate, as towhether he shall or shall not continue such action."4. According to section 130 , i f the unlaw ful assemb ly canno tbe dispersed by the officer mentioned in section 130(1) with theforces under his command, and it is necessary to disperse suchunlawful assembly in the interest of public security, the ExecutiveMagistrate of the highest rank who is present at the spot, isem pow ered to direct the arm ed forces to disperse it. SubSection (2) elucidates the power under sub-section (1); i t



39

provides that such Magistrate may require any officer incommand of armed forces to disperse such unlawful assemblywith the help of the forces under his command, and to arrest andconfine such persons as he may direct or as may be necessaryfor the purpose of such dispersal. Sub section (3) declares th atan off icer of the armed forces, whose services are requisit ionedby the Magistrate, shall obey such requisit ion but the manner inwhich he carries out the task given to him, is left to him, with therider that while dispersing the unlawful assembly, he shall use asl i tt le force as the circumstances warrant and cause as l i t t le injuryto person or property as possible consistent with thecircum stances of the situa tion . The same rider applies evenwhile arresting or detaining the members of the unlawfulassembly.5. Section 130 , in our op inion , clearly lays dow n and affirmsthe supremacy of the civi l power in the matter of maintenance ofpublic ord er; i t requires the officers of the arme d forces , whosehelp is requisit ioned by the Magistrate to obey such requisit ion;of course, the manner in which he should do the task entrustedto him is left to him ; even the re, there is the req uirem ent ofusing as little force as possible and cause as little injury to personor pro perty as possible, in the circumstances of the case. Thesefeatures of this section, in our considered opinion, are highlywelcome and salutary provisions, the absence of which could leadto arbitrariness and capricious behaviour - which may in fact giverise to another kind of problem while subduing one kind ofprob lem.

6. Section 13 1 provides for a situation differe nt from the oneenvisaged by Section 130, namely a situation where the public



40security is manifestly endangered by any such unlawful assemblyand no Executive Magistrate can be communicated w i th . In sucha situation, any Commissioned Officer or Gazetted Officer of thearmed forces is empowered to disperse such unlawful assemblywith the help of the forces under his command and for the saidpurpose; he is also empowered to confine any person who is am em ber of such unlawful assembly. At the same t im e, thesection takes care to provide that while so acting, if it becomespracticable for the officer of such armed forces to communicatewith the Executive Magistrate, he shall do so and thenceforwardobey the instructions of the Magistrate as to whether he shall, orshall no t, con tinue such-ac tion. This section is indica tive of theconcern of the Parl iament that the armed forces shall not act ontheir own while dispersing unlawful assemblies except where thesituation is grave (manifestly endangering public security) and noMagistrate can be communicated w i th . These sections and theconcern exhibited by them may be contrasted with the blanketpowers given by Section 4 under the Armed Forces (SpecialPowers) Act, 1958, recognizing at the same time that Section130 and 131 contemplate a temporary local phenomenon and nota long term insurgency or terrorism spread over a largegeographic a rea.7. Section 132 provides protection to the persons acting undersection 129, 130 and 131 against any proceedings in a criminalcou rt. It states tha t no proceedings can be institute d against anysuch person except with the sanction of the Central Governmentwhere the person to be proceeded against is a member of thearmed forces and with the sanction of the State Governmentwhere the persons to be proceeded against is member of any



other force. This section also expressly provides that no person4

acting under sections 129 , 130 and 131 shall be deemed to havecommitted any offence while acting under and in accordance withthe said provisions.8. It is evide nt th at sections 130 and 13 1 are m ean t to m eetsituations where an unlawful assembly endangers the publicsecurity. [By way of i l lustration, we may refer to the anti-Sikhriots following the assassination of late Prime Minister Smt. IndiraGandhi or the situation arising consequent upon demolit ion of theBabri M asjid, or com mu nal riots. These are situa tion s; i t isnecessary to point out, where the authority of the State is notchallenged. These are situations, which arise unexpectedly or onaccount of a sudden incident or event l ike the examples statedabove. Such situations must be distinguished from those arisingin the North Eastern States like Manipur, Nagaland or Assamwhere the mil i tants not only challenge the authority of the Statebut by their composit ion, strength, aims and object ives present aproblem which is spread over a large geographical area and islong term in nature. In situations of the latter k ind, theprovisions of the Criminal Procedure Code would not beade qua te. A pe rm an ent legal provision wou ld be required whichpermits the army and the other Central forces to operate over anextended area and time period - of course, consistent with therights and interests of the cit izens and the security of the State.9. We have kept the above facts and circum stances in m indwhile examining the issues referred to us.



42

PART IIIFEED BACK RECEIVED BY THE COMMITTEE

REPRESEN TATIONS, PUBLIC HEA RINGS, ETC.)

C H A P T E R - IManiour

The Committee, with a view to ascertain the views,opinions in Manipur on the AFSPA and its implementation, issueda notif ication calling for responses from the public. TheCom m ittee visited the State of Manipur in the first instan ce. Thiswas for the reason that the latest upsurge against the AFSPAtook place in Manipur following the death of Ms.Th. ManormaDevi while in the custody of the Assam Rifles. The visit to Imphaltook place on December 27-30, 2004 and the hearings were heldin the premises of the M anipur Human Rights Co m miss ion. TheChairman of MHRC, Justice (Retd.) W.A. Shishak was kindenough to make necessary arrangements for our hearings.2. There was a b ndh called by a faction of the Apunba Lup,which demanded the immediate repeal of AFSPA, when theCommittee was in the State. Despite that, many groups,individuals and organizat ions made deposit ions before theCommittee. The family of Manorama Devi also met theCommittee. The l ist of individuals and groups who maderepresentat ions to the Committee is at A n n e x u r e - I I I . From theviews expressed before us and from the representationsreceived, the fol lowing dist inct view-points emerged:(a)The do m inan t view -poin t expressed by a large num ber oforganizat ions/ individuals was that the Act is undemocrat ic, harsh



43and discriminatory. It is applicable only to the North-EasternStates and, therefore, discriminates against the people of theregion. Under the protection provided by the Act, several illegalki l l ings, torture, molestations, rapes and extort ions have takenplace particularly since the Act does not provide for or create amachinery which provides protection against the excessescom m itted by armed forces/pa ra-m il itary forces deployed in theState. The Act should, therefore, be repealed. The Committeespecifically put questions to the persons who appeared before itwhether they wanted both the Act and the Army to go , orwh ether they wa nt only the Act to go but the Army to rem ain. Tothis question, the overwhelming response was that while the Actshould be repealed, the Army should remain to f ight the mil i tantsand guard the borders.

a) A certain view-point voiced by some persons was that boththe Act and the Army should be removed from Manipur.According to them, the problem in Manipur is essentially a socio-economic one and not of law and order. If the basic issues ofsocio-econom ic and of political natu re are atte nd ed , it wo uld notbe necessary to have the presence of the Army in the State,(b) A dif ferent view -point voiced by a few elderly persons andassociations was that both the Act and the Army should remain inthe interest of and for ensuring the safety of small ethnic groupsand other minori t ies.3. The Co m mittee gathered the impression tha t there is acertain amount of confusion in the minds of many citizensregarding the respective powers of the State police organizationsand that of the armed forces of the Union. They are under theimpression that the State Police Forces were also acting under



44the protection of the Act. As a consequence, the excessescommitted by the State Police and Commandos are generally laidat the door of the Act.4. Ce rtain orga nizations filed elabo rate lists of allegedatrocit ies committed by the security forces and in part icularagainst the members of the Assam Rifles. These lists also citeinstances of ki l l ing of innocents, including women and children.This material, being too bulky, is not enclosed to the Report butis sent to the Government along with this Report for such use asma y be found appropriate by the concerned au thorit ies. It wasalso brought to our notice that in several cases of allegedexcesses, enquires were held by competent authorit ies and theguilty personnel awarded punishment and compensation was alsogiven to the aggrieved persons in some cases.5. The curre nt situation in Manipur is a complex am algam offactors. There are longstanding animosit ies among ethnic, t r ibal,plains and hil l groups. The Meitei people who constitute themajority in the State have a deeply felt historical perspective ofManipuri terr i tor ial and cultural unity. The nexus between crimeand pol i t ics on one hand, and foreign involvement through funds,arms, and sanctuaries on the other, make for a highly volati lesecurity situation. Over the years, the nature of insurgency has -as elsewhere in the North East - shifted to acts of terrorism,extort ion, coercion of the population giving rise to a situation ofinternal disorder. In the last two decades the numbers of mil i tantgroups, their arsenals and lethality have grown immensely. Thesi tuat ion, it appears, cannot be managed by the State law andorde r ma chinery as at present. The Arm y and othe r Centralforces may continue to play a m ajor role in the security



45

economic measures begin to take effect and the governance inthe State improves.6. The Co m m ittee is also of the opinion th at the re is adeliberate and carefully planned attempt by mil itant organizationsto dama ge the repu tation and morale of the Armed Forces. Therequirement therefore is to ensure that the powers of the army toconduct operations against mil i tant organizations remain while atthe same time, ensuring that these operations do not impingeupon the rights and the safety of the citizens.

Hil l Districts of Ma nipurSenaoat i7. The Co m m ittee also visited the hil l-districts of the Stateand held hearings at Senapati and Churachandpur on April 21and Apri l 23, 2005

8. At Senap ati the various Naga orga nizations had m et earlierand discussed the issue in detail, exchanged views amongstthemselves and made out a common writ ten representat ion onbehalf of the Naga Peoples' Organisation. However, as many as11 representatives of the Civil Society groups made oralpresentations. Three more written representations were alsohanded over.

9. Ini t ial ly, how ever, they said tha t they wou ld not besatisf ied with 'review'. Their demand was nothing short of repealof the Act. I t was explained to them on behalf of the Committeethat Review was a very wide term and included repeal also. Theywere quite satisf ied with this clarif ication. They made a grievance



46

against the Act for almost 50 years, nothing was done until theManorama Devi incident in Imphal prompted the Govt. of India toset up this Committee.Churachandpur10. Six written representations were received by theCommittee at Churachandpur on behalf of the organizationsrepresenting the Kukis, Zomis, Paites, Koirengs (Korens) andothers on April 23, 2005. Representatives of four organizations (atotal of 17 persons) appeared for oral hearings.11. The views expressed at Churachandpu r were qualita tive lydifferent from those received from elsewhere in the State. Oneview was in favour of replacement of the Act by a more effectivelaw so that peace and harmony could be restored in the State.Some others wanted that the Act should not be lifted fromChurachandpur area where the people were the major victims atthe hands of underground outfits, as a result of whichdevelopment work had come to a standsti l l . One view was thatthe Army should stay but the excesses committed by themshould be stopped. Only one organization was in favour ofcomplete withdrawal of AFSPA.



47C H A P T E R - I I

Tr ipura

The Co mm ittee visited Aga rtala( Tripura ) on February 8,2005. The representatives of Twipra Students Federation, BorokPeoples Human Rights Organization, Indigenous Nationalist Partyof Tripura and the Tripura Pradesh Congress Committee met theCommit tee.2. We mu st me ntion at the outset tha t a misconception wasprevailing among the people who appeared before us viz. thatthe state security forces are also covered by the Act and areentit led to exercise all the powers and enjoy the immunitiesprovided by it. The Committee sought to erase this impressionstating that the Act has no application to the Tripura Statesecurity forces but only to the armed forces and otherparamilitary forces of the Union. Be that as it may, therepresentat ives of the three f irst mentioned organizat ionscomplained of excesses and atrocit ies said to have beeniommitted by the Tripura security forces and requested for therepeal of the Act. They also made a fervent plea that the influx ofBangladeshis into Tripura should be stopped lest the tribalpopulat ion of the state is further marginalised.3, The represe ntatives of Tripura Pradesh CongressCo mm ittee, howeve r, took an opposite stand . They subm ittedthat since there is no let up in the insurgency, the Act shouldcontinue. They complained that mil i tants were target ing peacefulcit izens. They suggested that with a view to check excessescommitted by the security forces, there should be a mechanismto give exemplary punishment to the guilty among them. They



48also submitted that the SPOs appointed by the state governmentwere indeed f leeing with arms and joining mi l i tant groups.4. The Hon'ble Chief Minister me t the C om m ittee. He brou ghtto our notice that neither the army nor any of the armed forcescontrol led by the Central govt. are deployed in the state, barringa few units of the Assam Rifles. Predominantly, it is the statesecurity forces th at are dealing with insurgent activit ies. Hepointed out that there were no complaints of atrocit ies againstAssam Rifles in this State.5. The ma in problem emphasized by the Ad m inistrationrelates to the i l legal immigration of Bangladeshis and thepresence of a large number of camps along the Tripura border,within Bangladesh terri tory, where insurgents were beingprovided with funds, arms, ammunit ion and refuge.6. We m ust also point out tha t the Act is enforced only in thehil l district of the State, viz. the Tripura Tribal AutonomousDistrict Council, and not in the entire State. The list of individualsand groups and a gist of their submissions is placed at Annexure-IV.



49

C H A P T E R - H IAssam

To ascertain the views and opinions of the people of Assam,the Co m m ittee visited Guw ahati on February 9 and 10, 200 5. Alarge number of Lawyers and a good number of representativesof civil society orga nizations expressed the ir view s. The list ofindividuals and organization who appeared before the Committeeand the gist of their submissions is placed at Annexure.Ove rwhe lming view was tha t the Act should be repea led. TheCommittee was impressed, part icularly by the representat ionmade by Shri T.C. Mazumdar, Sr. Advocate and former Memberof Rajya Sabha (accompanied by two other advocates ofGu wa hati) relating his personal experience. While trav eling fro mGuwahati to Tezpur in Assam, his car was stopped enroute by them em bers of the arme d forces. He was asked to get down fromthe car and surren der the car to th em . Mr. Mazum dar says, hetold them that he is a heart patient having undergone heartsurgery and that in view of his old age and health; he should beal lowed to proceed to the nearest town, wherefrom they couldtak e his car. But his request was rejected and the car was take naw ay, leaving him high and dry on the highw ay. He strong lyurged for the repeal of the Act. He opined th a t UnlawfulActivit ies (Prevention) Act, which is in force in the entire country,is adequate to meet the mil i tant activit ies and there is absolutelyno necessity to have the AFSPA. We also hea rd sim ilarcom plaints from an Advo cate, (a retired Sessions Jud ge). ThePresident of the Lawyers Association, Guwahati, and severalother advocates pleaded for the repeal. However, one advocatewh o is now a counsel for Central Go vt. took a diffe ren t l ine andasked for di lution of the Act to accord with the human rights.



50

2. Some studen ts of Post Graduate courses in Gu wa hatiUniversity also pleaded for the repeal of the Act. This was alsothe refrain of the representatives of North-East Net-Work,Guwahati, Assam Pradesh Mahila Society, Assam JatiyabadiYuva-Chhatra Parishad, Manab Adhikar Sangram S am iti ,Guwahati and KARBI Tehnical Unemp loyed Youth Assoc iationand KARBI Youth Organisation. BMSS (Bishnupriya ManipuriSamaj Sanstha, Guwahati) pleaded that the interests ofBishnupriya Manipuris should be protected while reviewing andmodifying AFSPA.3. Gu wa hati High Court Bar As sociation, Nagarik Mancha,Guwahati, Social ist Unity Centre of India uniformly complained ofthe excesses allegedly committed by the Assam Rifles and otherArmed Forces, taking advantage of the immunity granted by theAct.4. When the Com mittee questioned the above personswhether they want the Army also to leave Assam (besides askingfor repeal of the Act), two strands of opinion eme rged. Oneopinion was that Army should also be withdrawn (except from theborders) while the other was that while the Act should go, thearmy should remain to f ight insurgency and further that thereshould be an adequate legal mechanism to provide for andregulate the operations of the armed forces.5. Con trary views were expressed by the Com missioner &Secretary to the Govt. of Assam (Home and Political Department)who stated th at th e en tire S tate of Assam w as declared as a disturb ed area by the Central Govt. on 27.11 .19 90 , in view ofthe prevail ing dangerous situation arising out of the activities of



51

ULFA. He stated th at since 20 .8.1 99 7, the Go vt. of Ind ia hasbeen reviewing the extension of the Act every six m onths andthe last extension was ordered on 4.11.20 04 up to 3.5.2 00 5. Hestated further that ULFA and NDFB had, of late, increasedtarg etin g civil ians and Secu rity Forces. He stated tha t thou ghsome mil i tant groups, including NDFB have come forward fornegotiations, ULFA stil l remains defiant and continues to harpupon sovere ignty. In conclusion, he stated tha t the Act continuesto be a crit ical requirement for curbing counter insurgencyoperations under a unif ied command and should thereforecontinue.

6. DIG, CISF, Guwahati subm itted a-tw o-pa ge wri t tenrepresentation to the Co m m ittee. He requested tha t the powersconferred upon CRPF and BSF should also be conferred upon theCISF.Dibruaarh

The Committee also visited Dibrugarh in Assam on Apri l 24and 25 for hearings and discussions. It received a representationfrom the Sadou Asom Mottock Yuba-Chhatra Sanmilan, whichcalled for the repeal of the Act on the ground that innocentpeople had been harassed and harmed by it.8. The Co m mittee had an extensive discussion w ith abou t 31scholars, lawyers and representatives of business at DibrugarhUniversity. The Vice Chancellor was also present. The basictheme underlying the discussion was that the Act should berepealed because it was discriminatory and anti-people. A fewspeakers suggested that there shouid be a grievance redressaland review mechanism to give basic information about detainedpersons to the famil ies of the victims.



52C H A P T E R - I V

M e q h a l a v aTo ascertain the views and opinions of the stakeholders in

Meghalaya, the Commit tee v is i ted Shi l long on 11.2.2005. I t mustbe mentioned that the Act is in force only in the 20 Ki lometersbelt along the border of this State with Assam; i t is not in force inthe ent i re State. No compla ints of excesses or other wrongfu lact iv i t ies on the par t of the A rm ed ' Forces was bro ug ht to thenot ice of the Commit tee. Even so, the Commit tee held i tshearings and the fol lowing is the condensed version of therepresen tat ions received by the Co m mi t tee . .2. DG, Assam Rif les, Shi l long gave a deta i led pre sen tat io n onthe Assam Rifles. He explained the role of Assam Rifles in theNorth-Eastem States and their deployment in each State. Hejust i f ied the retent ion of AFSPA saying that i t would be dif f icultfor the Armed Forces to work wi thout any legal protect ion. Theguidel ines given by the Supreme Court could also be included inthe new legis lat ion.3. Go vt. of Me ghalay a, Shi l long rep res ente d by ShriA.Pradhan, Addl. DG of Police and Shri Marbanjang. AIG of Policement ioned that the State Govt . has not enforced th is Act inMegha laya since i ts bir t h in 197 2. Ho we ver, th e Union Go vt. ini ts not i f icat ion dated 27.11.1990 has declared 20 k i lometers widebelt in the State of Meghalaya bordering Assam as a disturbedarea under Section 3 of the Act.4. Dino D.G. Dy m pep , Sec retary-G ene ral , Meghalya People 'sHuman Rights Counci l handed over a wr i t ten representat ion tothe Commit tee, s tat ing that AFSPA has fa i led to conta ininsurgency si tuat ion and that there are other Acts already in



53

force like the Unlawful Activities (Prevention) Act, 1967 ( whichhas been amended in 2004 equipping i t to deal with terrorism)which are sufficient to deal with militancy.5. An intera ction was held at the North Eastern Hill Un iversitywith faculty members, presided over by the Vice Chancellor Dr.Mrinal Mir i, where a large number of academicians participated,spoke against the Act and the need to end discriminatoryt rea tment .

6. A l ist of individuals and organizations who me t the C om mitteeat Shillong is placed at A n n e x u r e - V I .



54

CHAPTER-VNaaaland

For nearly half a century, the Naga Hills have been intu rmoi l . The initial trigger was the arm ed m ove m ent seekingindependence from In dia. The uprising led to a m ajor c onfl ictwith the Government of India, which rushed troops, suppl ies andweapons to the area to meet the challenge of armed insurrection.

2. Fifty years dow n the line, desp ite ongoing peace.negotiations with the Centre, the standoff with New Delhicontinues, albeit in a non-armed sense. In these past decades,the presence of the armed forces and non-State combatants fromthe Naga side have played havoc with society in the state andelsewhere in the region where there are insurgencies or armedmil i tancy. The people of the state have been the worst sufferers.

3. It was to deal w ith the uprising in the Naga Hills, the n inAssam, that the AFSPA was introduced in Parliament in 1958 bythe then Home Minister, Shri GB Pant, against opposit ion frommembers from Manipur. The measure has continued for nearly 47years.

4. During this pe riod, the record of the application of the Act,has, by any measure, been controversial. People in the Statecomplain of, what they call, arbitrary ki l l ings and torture, fakeencounters and disappearances, rape of women, molestation andother alleged excesses. A failure on the part of the armed forces



55to understand local customs, communities and views hasaccentuated the problem.5. This too has begun to change over the past ye ars , w ithgreater sensit ization

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