Gauhati High Court
Border Security Force (B.S.F.), ... vs State Of Meghalaya And Ors. on 30 March, 1988
Equivalent citations: AIR1989GAU20, AIR 1989 GAUHATI 20, (1988) 2 CURCC 177 (1988) 1 GAU LR 448, (1988) 1 GAU LR 448
Author: B.L. Hansaria
Bench: B.L. Hansaria
JUDGMENT Hansaria, C.J. (Actg.) 1. A question of great importance relating to the extent of power of a State Government to appoint a Commission of Inquiry under the Commissions of Inquiry Act, 1952, hereinafter referred to as the Act, is involved in this application under Article 226 of the Constitution of India, which has been filed by the Border Security Force (B.S.F.) represented by the Commandant of its 74th Bn. The undisputed facts which needbe noted for disposal of this petition are these Baghmara is a Sub-Divisional town of the West Garo Hills district in: the State of Meghalaya on the international border with Bangladesh. One company of the 74th Bn Border Security Force is deployed between border pillars 1143 to 1158 with its company headquarters/border out-post in Baghmara town which is situated just on the border. It is the responsibility of this outpost to check smuggling and to maintain proper security of the international border. On 14th April, 1987, there were violent incidents in Baghmara whereupon Border Security Force had to resort to firing. There was disturbance of public order at Baghmara on that date. Several persons were injured as a result of the firing. 2. The Government of Meghalaya vide its Notification No. POL.212/87/7 dt. 10th July, 1987, appointed a Commission of Inquiry consisting of Shri A. Nongrum, District and Sessions Judge, Shillong, in exercise of power conferred by Section 3(1) of the Act to enquire into and report on the incident which took place at Baghmara on April 14, 1987, disrupting public order and causing injuries to persons and damage to properties and in particular on :-- (i) the causes and nature of the disturbance at Baghmara on the date; (ii) the circumstances under which the fire was opened by the Border Security Force and action taken thereafter; (iii) the allegations of excesses by the Police and BSF in dealing with the situation. (iv) any other circumstance which to the Commission may appear to be relevant. The jurisdiction of the learned Commission to enquire into the matter referred to it has been challenge by the BSF. This question was agitated before this Court in Civil Rule No. 972/87, This Court permitted the learned Commission to record evidence to satisfy itself relating to its jurisdiction. After going, through the evidence, the learned, Commission has held that the State Government has necessary jurisdiction to constitute the Commission and it has, therefore, decided to proceed with the enquiry. This order of the learned Commission passed on 23-2-88 has been assailed before us. 3. The submission of Shri Majumdar, who has appeared for the petitioner, is that the Government of Meghalaya cannot be regarded as the appropriate Government to appoint the Commission to enquire into the matters which are covered by the aforesaid Notification. A reference to Section 3 of the Act shows that it is the appropriate Government only which can appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance. Section 2(a) of the Act has defined the expression "appropriate Government" and the relevant part of the same reads as below ; "2. Definitions-- In this Act, unless the context otherwise requires,-- (a) "appropriate Government" means- (i) the Central Government, in relation to a commission appointed by it to make an - inquiry into any matter relatable to any of the entries enumerated in List I or List II or List III in the Seventh Schedule to the Constitution; and (ii) the State Government, in relation to a Commission appointed by it to make an inquiry into any matter relatable to any of the entries enumerated in List II or List III in the Seventh Sch. to the Constitution." It is thus apparent that if the enquiry be relatable to any of the entries enumerated in List I, it is the Central Government only who can appoint a Commission of Inquiry, whereas if the matter be relatable to any of the entries relatable to List II or List III, the State Government can also do so. The contention of Shri Majumdar is that as the inquiry is essentially relatable to the firing resorted to by the BSF, the subject-matter is covered by Entry 2 of List 1. The counter submission of the learned Advocate General, Meghalaya, is that the subject-matter falls within the ambit of Entry I of List II. Apart from, these two entries, the other entry which is relevant for our purpose is Entry 2-A of List I. We may read these entries. List I-Union List. "2. Naval, military and air forces; any other armed forces of the Union. 2-A. Deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of civil power; powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment. List II-State List "1. Public order (but not including the use of any naval, military or air force or any other armed force of the Union or of any other force subject to the control of the Union or of any contingent or unit thereof in aid of the civil power)." There is no dispute before us that the B.S.F. is an armed force of the Union. This is apparent from the provisions of the Border Security Force Act, 1968, Section 4(1) of which dealing with the constitution of the Force states that "(t) here shall be an armed force of the Union called the Border Security Force for ensuring the security of the borders of India". Section 4 of the Act has vested the general superintendence, direction and control of the Force in the Central Government. As the concerned company of the B.S.F. had not been deployed by the State Government in aid of the civil power, it is apparent that the subject-matter of the enquiry is not relatable to Entry 2-A of List I, nor is it covered by the exclusionary part of Entry 1 of List II. The submission of the learned Advocate General, therefore, is that the Government of Meghalaya had jurisdiction to appoint the Commission at hand inasmuch as the Government wanted to get enquired a matter relating to disruption of public order as would appear from the Notification itself. In other words, according to the learned Advocate General, the "pith and substance" of the subject-matter of enquiry is disruption of public order, and as such the subject is covered by Entry 1 of List II. The counter submission of Shri Majumdar is that the subject-matter of enquiry is essentially relatable to the alleged excesses committed by the BSF in opening the fire and, as such, the subject matter falls within the ambit of Entry 2 of List I. The learned counsel submits that if a State Government cannot get a Commission appointed to enquire into the actions of the armed forces like BSF even when they are deployed in aid of the civil power, the same cannot be done, a fortiori when actions are taken by them while not being deployed in aid of the civil power. In answer to this submission of Shri Majumdar, learned Advocate General has contended that if any armed force of the Union while acting within the territorial limits of a State caused disruption of public order by its activity, but despite this if the State Government be powerless to get the same enquired, the very foundation of our federal structure would be shaken inasmuch as the State Government would be compelled to become a silent spectator of the excesses committed by the armed forces of the Union. 4. We have duly considered the aforesaid submissions. There being no precedence and no decision of any Court having been cited before us on any point by any of the learned counsel, the matter has been examined as of first impression. Even if it is conceded that "pith and substance" of the enquiry is disruption of public order, the same is not conclusive to hold that the subject-matter is covered by Entry I of List II as it reads. If Entry I would have merely read as "Public order" without any qualifying words, the contention of the learned Advocate General could have been accepted. But the qualifying words of the entry have undoubtedly narrowed down the width of the subject-matter covered by this entry. If the State Governments cannot get enquired into the working of the armed forces of the Union even when they are deployed in aid of the civil power because of what has been stated in Entry I, it would be difficult to concede that the State Governments could do so when the armed forces of the Union are not so deployed. Entry I as it reads has undoubtedly cut down the power of the State Governments in getting working of the armed forces of the Union enquired into by the State Governments even if their working had disrupted public order. This might have been the result of the thinking that if the State Governments are allowed to enquire into the working of the armed forces of the Union, the control over their working would not remain exclusively in the hand of the Central Government. May we point out that the main part of the exclusionary portion of Entry I of List II had found place in the Constitution even when it was first enacted; only the words "of any other force subject to the control of the Union or of any contingent or unit thereof were added into it by the Constitution (Forty-Second Amendment) Act, 1976. May we also say that if we were to allow the State Governments to enquire into the working of the armed forces of the Union, the same view shall have to be taken regarding the working of the naval, military and air force even when these forces are discharging their independent duties which would definitely dilute the control over these forces vesting in the Central Government. 5. As to the contention of the learned Advocate General that if the State Governments be powerless to get enquired into the activities of the armed forces of the Union even if the same were to cause disruption of public order the very foundation of our federal structure would be shaken, it may be stated that the federating States having agreed to allow control over the armed forces of the Union to remain with the Central Government as would appear from the distribution of subjects laid down in the Seventh Schedule of the Constitution, no dent to the federal structure would really be caused by the stand we have taken because, in view of the comity which is supposed to exist in a federation between the Centre and the States, in an appropriate situation it would be expected of the Central Government to appoint a Commission to enquire into the excesses of the armed forces. When the States formed a federation, or a Union as in our case, and some power was exclusively vested in the Central Government, we have to take it for granted that the State Government had accepted that the Central Government would exercise that power when necessity for the same would arise; and leaving the exercise of that power with the Central Government cannot be regarded as causing injury to the principle of federation. May we point out that the States have agreed to leave it to the Centre to appoint Commission to enquire into the activities of the armed forces even while deployed in helping the States in discharge of their constitutional and legal duties, qua Entry 2-A of List 1; and this they must have done having implicit faith in the Centre. We think that they must have the same amount of faith in the Centre relating to the appointment of Commission to hold inquiry into the working of the armed forces when they commit excess or disrupt public order while deployed to discharge the functions exclusively entrusted to the Central Government. What would happen if the act committed be quite unrelated to the duty assigned to a member of armed forces is of course a question on which we do not express any view for the present. 6. This is our interim order containing pur tentative thinking on the subject at hand. We have put them on record to enable the learned counsel of the parties and the Advocates General of all the States over which this Court exercises jurisdiction, on whom we think notices of the case should be issued in view of the importance of the matter, to advance detailed arguments to enable us to arrive at a final decision on this subject which is of great importance in so far as the State Governments are concerned. 7. Let copies of this order be served on the counsel of the parties and the Advocates General of the States to appear and assist the Court in the matter. Sangma, J.
8. I have read the order of my Lord the Chief Justice (Acting). My tentative view is that if the armed forces do not come in aid of the civil power as provided in Sections 130 and 131 of the Criminal P.C., the State Governments shall have jurisdiction to appoint a commission under the provisions of the Commissions of Inquiry Act to enquire into the excess committed by the armed forces, because in that case the Subject-matter shall be covered by Entry 1 of List II.