Académique Documents
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PART I I
Legal and Constitutional Aspects
CHAPTER-I
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 As originally enacted, the power to declare an area to be a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 conferred
concurrently upon the Central government. The reason for
conferring such a power upon the Central government is stated in
the '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 the
Administrators of the Union Territories to declare areas in the
concerned State of Union Territory as 'disturbed'. Keeping in
view the duty of the Union under Article 355 of the Constitution,
inter alia, to protect every State against internal disturbance, it is
considered desirable that the Central government should also
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CHAPTER I I ;
entry 1 in the State List reads: " 1 . Public Order (but not including the use of
the army, naval, military or air force in aid of civil power)". It means
that the State cannot make a law with respect to the deployment of the armed
forces, while it can legislate with respect to public order. The State can, no
doubt, request the Central Government to send its armed forces for maintaining
public order but it cannot itself direct such deployment.
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CHAPTER-HI
CHAPTER-IV
the assembly with the help of the armed forces under his
command, and to arrest and confine such persons forming part of
it as the Magistrate may direct, or as it may be necessary to
arrest and confine in order to disperse the assembly or to have
them punished according to law.
(3) Every such officer of the armed forces shall obey such
requisition in such manner as he thinks fit, but in so doing he
shall use as little force, and do as little injury to person and
property, as may be consistent with dispersing the assembly and
arresting and detaining such persons.
Section 131. Protection against prosecution for acts done under
preceding sections.
3. When the public security is manifestly endangered by any
such assembly and no Executive Magistrate can be
communicated with, any Commissioned or Gazetted Officer of the
armed forces may disperse such assembly with the help of the
armed forces under his command, and may arrest and confine
any persons forming part of it in order to disperse such assembly
or that they may be punished according to law; but if, while he is
acting under this section, it becomes practicable for him to
communicate with an Executive Magistrate, he shall do so, and
shall thenceforward obey the instructions of the Magistrate, as to
whether he shall or shall not continue such action."
4. According to section 130, if the unlawful assembly cannot
be dispersed by the officer mentioned in section 130(1) with the
forces under his command, and it is necessary to disperse such
unlawful assembly in the interest of public security, the Executive
Magistrate of the highest rank who is present at the spot, is
empowered to direct the armed forces to disperse it. Sub
Section (2) elucidates the power under sub-section (1); it
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acting under sections 129 , 130 and 131 shall be deemed to have
committed any offence while acting under and in accordance with
the said provisions.
8. It is evident that sections 130 and 131 are meant to meet
situations where an unlawful assembly endangers the public
security. [By way of illustration, we may refer to the anti-Sikh
riots following the assassination of late Prime Minister Smt. Indira
Gandhi or the situation arising consequent upon demolition of the
Babri Masjid, or communal riots. These are situations; it is
necessary to point out, where the authority of the State is not
challenged. These are situations, which arise unexpectedly or on
account of a sudden incident or event like the examples stated
above. Such situations must be distinguished from those arising
in the North Eastern States like Manipur, Nagaland or Assam
where the militants not only challenge the authority of the State
but by their composition, strength, aims and objectives present a
problem which is spread over a large geographical area and is
long term in nature. In situations of the latter kind, the
provisions of the Criminal Procedure Code would not be
adequate. A permanent legal provision would be required which
permits the army and the other Central forces to operate over an
extended area and time period - of course, consistent with the
rights and interests of the citizens and the security of the State.
9. We have kept the above facts and circumstances in mind
while examining the issues referred to us.