Gauhati High Court
Peoples Union For Human Rights ... vs Union Of India (Uoi) And Ors. on 20 March, 1991
Equivalent citations: AIR1992GAU23, AIR 1992 GAUHATI 23, (1991) 2 GAU LR 1
Bench: Chief Justice, S.N. Phukan
JUDGMENT A. Raghuvir, C.J.
1. The President of India on November 27, 1990 promulgated Central Rule in the State of Assam. This is the fourth time such a rule was promulgated under the Constitution. First time Assam came under President's Rule on December 12, 1979, on June 20, 1981 for the second time and on March 12, 1982 the President's Rule was imposed for the third time. The declaration on November 27, 1990 thus is the fourth in the series. Along with the Central Rule the Central Government under the Armed Forces (Special Powers) Act, 28 of 1958 (the Act of 1958) declared the entire State of Assam a disturbed area as it was in a disturbed or dangerous condition, therefore armed forces were deployed for maintenance of law and order. Ten days later on December 7, 1990 the Governor of Assam declared the State as a disturbed area under the Assam Disturbed Areas Act, 19 of 1955 (the 1955 Act). The proclamation of Central Rule and the two notifications under the two enactments are assailed in the above four writ petitions.
2. The debate in these four cases touched many subjects of wide ranging character. In one of the writ petitions whether the State of Assam is a part of India is questioned. Many international covenants like Universal Declaration of Human Rights of 1966 and 1975 were referred. The book of Boarkan on Human Rights and Techniques was cited. Geneva Convention of August 12, 1949 for protection of victims of non-international armed conflict -- a UNO document called Protocol II was cited. The declaration of child adopted in 1959 by the General Assembly of the UNO; Article 24 of the International Covenant on Civil and Political Rights, 1966 is complained as not being implemented by Govt. of India. It was argued the Government of India subscribed to the documents and the Central Government is bound to implement the Covenants. The case in (1987) 3 SCC 50 : (AIR 1987 SC 656) (Sheela Barse v. Secretary, Children's Aid Society) was cited. Montevideo Convention of 1933 was referred to show Assam can claim Statehood outside India. Documents of League of Nations Series Vol. 165, page 19 were referred. It was argued that for acquiring a sovereign independent statehood a permanent population, a defined territory, an established government, and capacity to enter into relations with other States, the five principles are essential and all these characteristics the territory of Assam possessed to claim Statehood under International Law. In support of this claim British Year Book of International Law, pages 76-77 were cited. Passages from the book "Human Rights in the Changing World" by E. S. Venkataramiah, retired Chief Justice of the Supreme Court were read to claim self-determination is a natural right of the people. The Declaration of Human Rights referred to in (1990) 1 SCC 568 : (AIR 1990 SC 605) (Kubic Dariusz v. Union of India) (para 20) was preferred for acceptance. A book on Human Rights by A. H. Robertson was cited. The rights adumbrated in the case of (1980) 2 SCC 360 : (AIR 1980 SC 470) (Jolly George Verghese v. Bank of Cochin) was cited. A petition before the United Nations General Assembly lodged in August 1990 by an organisation called ULFA (United Liberation Front of Assam), about which more will be stated later, was referred. It was urged Assam for membership in the United Nations is under consideration under the Charter of the United Nations. We have referred to these aspects at the inception to show the above (sic).
3. As respects the State of Assam in India a brief historical survey of Assam is not irrelevant in view of what is alleged in one of the petitions. Assam in ancient times was known as Pragjyatishpur referred in epics of Ramayana and Mahabharata, Vishnu Purana, Kalika Purana, Yogini Tantra. In medieval times the present day Assam was known as Kamrupa. The Ahom (partly from Burma and Thailand) invaded Assam in 1226. Mughals invaded Assam in 1612 for a brief period. The East India Company came to control Assam from 1833. Assam was a Province under the Govt. of India Act, 1935 and part of the included areas called Excluded Areas and Partially Excluded Areas referred in Section 91 of the Government of India Act, 1935 and the Tribal Areas referred in Section 311 of the Govt. of India Act, 1935. The semi independent Khasi States were also included in the Province of Assam. The Excluded Areas, Partially Excluded Areas and the Tribal Areas were administered by the Governor and Khasi States were administered by the Governor as the representative of the Crown in accordance with the agreement entered into by these States with the Crown. While describing the territories of Assam in First Schedule to the Constitution the areas covered by the above three descriptions were included.
4. The District of Sylhet was ceded to East Pakistan now Bangladesh after a referendum. The Legislative Assembly 1955 or 1956 transferred 32 sq. miles of Devngiri Hills to Bhutan. In 1960 Nagaland District of Assam was accorded Statehood. In 1972 Meghalaya with two districts was accorded Statehood. In 1987 Mizoram, a district of Assam, was accorded Statehood. Arunachal Pradesh referred as North Eastern Frontier Agency (shortly NEFA) was accorded Statehood in 1987. Thus Assam which covered 255 thousand square kilometres on August 15, 1947 today covers only an area of 78 thousand kilometres. Manipur, a princely State now one of the seven States joined Indian Union on September 21, 1948. Tripura one of the ancient Hindu principality called Tippera of 16th Century was invaded by Mughals in 1733. The East India Company occupied it in 1765. Tripura and Manipur acquired the Statehood in 1972.
5. Assam is Anglicized version of the word "ASOM" used by Ahoms to indicate the terrain of the area is unequal and interspersed by hills and valleys. In common parlance Assam is referred as Brahmaputra Valley and Barak Valley. The Brahmaputra Valley at times is referred as Upper Assam and Lower Assam. The former consists of Dibrugarh, Tinsukia, Jorhat, Sibasagar, Nagaon, Morigaon, Lakhimpur and Dhemaji. the latter consists of Karmrup, Barpeta, Nalbari, Darrang, Sonitpur, Dhubri, Goalpara and Kokrajhar Districts.
6. In the elections that were held in 1985 the "extreme elements" in the State did not participate. That extreme element today is known by name United Liberation Front of Assam (ULFA). They are the applicants before the United Nations General Assembly. Their view point is Assam is a colony of India. Assamese are ethically discriminated and are groaning under economic domination of India.
7. In Civil Rule No. 2314 of 1990 the President's proclamation and the Notification issued by the Government of India under 1958 Act declaring the entire State a disturbed area on November 27, 1990 is assailed. The vires of Sections 4 and 5 of 1958 Act is assailed. Section 5 it is averred to be ultra vires of Section 50 of the Code of Criminal Procedure, 1973. This writ petition is filed by the Peoples' Union for Human rights represented by its members Shri Ramesh Kumar Jain, Shri Chinmoy Choudhury, Shri Gautam Uzir and Convenor-petitioners Pranabananda Patan and Surendra Nath Sarma. In this writ petition respondents are Union of India, State of Assam, represented by the Chief Secretary, G.O.C., Eastern Sector and Chief of Staff, Assam Eastern Command.
8. In Civil Rule No. 2238 of 1990 imposition of the Presidential declaration and Armed Forces are referred as "Combatants" and citizens of Assam are described as non-combatant villagers. The petitioner seeks to declare 1958 Act is ultra vires of the Constitution. This writ petition is filed by Nibaran Bora, an individual. In this case the respondents are the Union of India, the State of Assam and Army Command-in-Charge of Operation, Bajrang.
9. In Civil Rule No. 2415 of 1990 the imposition of Central Rule, the notifications under 1955 Act and 1958 Act are assailed. A local journalist is the petitioner. The Union of India, the State of Assam, the Joint Secretary to the Government of India, Ministry of Home Affairs, the Secretary, Government of Assam, Home, Political etc. Department, Dispur, Guwahati and the Deputy Secretary to the Govt. of Assam, Political Department, Dispur are respondents.
10. In Civil Rule No. 11 of 1991 the vires of 1958 Act is assailed to hold the provisions in the Act are opposed to fundamental rights guaranteed under Part-III of the Constitution. The petitioner is an Editor of "Boodhbar" Assamese Weekly newspaper.
11. The Assam Disturbed Areas Act, 1955 (Assam Act, 19 of 1955) consists of seven sections. The earlier Ordinance V of 1955 promulgated was replaced from December 21, 1955 by Section 7 of the Act. The Act was enacted to suppress disorder and for maintenance of public order. What is a Disturbed Area is defined under Section 2. A State Government is empowered to notify under Section 3 the whole or any part of the State a disturbed area. On such a declaration a Havildar of Armed Branch of the police of the State is empowered to fire upon for maintaining public order if any person is found acting in contravention of any law or order with respect of prohibition of assembly of persons or carried weapons or fire-arms, ammunition and explosive substance in contravention of the law. Under Sections a Magistrate or Police Officer can dismantle arms dump, structures shelters used as a training camp by armed groups or abscond-ers. Section 6 recites that no suit, prosecution or other legal proceeding be instituted for anything done under the Act except with the previous sanction of the State Government.
12. In 1874 there was no organised military force in Assam. The Frontier Police of the Naga Hills was formed. In 1917 the Assam Rifles was formed under the Eastern Bengal and Assam Military Police Act. Later on Assam Rifles Act of 1920 was enacted. In 1941 the Assam Rifles Act was re-enacted. In 1947 the Assam Disturbed Areas (Special Powers of Armed Forces) Ordinance XIV of 1947 was enforced. The Armed Forces (Special Powers) Act (Act III of 1948) replaced the said Ordinance. The Armed Forces (Special Powers) Regulation, 1958 (No. 2 of 1958) was brought into force on 5th April, 1958 in two districts. By Act No. 7 of 1972 the 1958 Act was applied to the seven States in the North East.
13. The 1958 Act consists of seven Sections. Sections of the Act empowers the Central Government or the Governor to declare any part of the entire State a disturbed area thereupon armed forces in aid of the civil power can be deployed. On such a declaration a Commissioned Officer, Warrant Officer, Non-Commissioned Officer of the Army can fire or use force even to cause death of a person, who is acting in contravention of order prohibiting the assembly of persons or carrying fire-arms, ammunition or explosive substances. The above specified officers can dismantle arms dumps structures hideouts used by gangs or absconders, arrest without warrant, those who committed a cognizable offence, enter search a premises to recover stolen property. The arrested persons are to be handed over to the police with the least possible delay with a report containing the circumstances occasioning the arrest (Section 5). Section 6 deals with sanction of the Central Government in respect of persons who are sought to be prosecuted for anything done under the Act.
Civil Rule No. 2314 of 1990 --
14. Civil Rule No, 2314 of 1990 -- this writ petition is by an Association of Advocates, called "Peoples Union for Human Rights". The objects of Association is to protect human rights of the North East India. In recent times it is averred racial, communal and ethnic clashes and administrative discrimination are a regular feature. In order to secure human rights it has become necessary to defuse ethnic conflicts. With the imposition of Central Rule and on declaration the State is a disturbed area, people of Assam are panic stricken as their rights are curtailed. The armed forces it is alleged in the name of flushing our extremists are perpetrating atrocities on the innocent men, women, young and old. The reports of rape, molestation, abduction etc. by the Armed Forces appeared in the news media. The Government of India declared the Nagas inhabited in hill areas in North Manipur as disturbed area and that notification was not rescinded for over a decade. Under the 1958 Act sweeping powers are invested to the authorities to arrest persons and search houses without warrants. The Armed Forces wre extended immunity from prosecution. State Officials like Superintendent of Police and Deputy Commissioner of Tinsukia District were detained by the Army under the operation 'Bajrang'. In Upper Assam Districts Civil Law ceased to operate due to the introduction of army administration. That innocent persons are tortured and raped. The provisions declaring the entire State of Assam as a disturbed area and allowing the armed forces to kill by shooting a person at sight on mere suspicion violate rights guaranteed under the Constitution. Section 5 of the said Act is ultra vires of Article 21 of the Constitution. The Army failed to protect the rights set out in Article 6 of the International Convention of Civil and Political Right which prohibits arbitrary deprivation of life. The human rights Committee emphasized that protection of right to life and the Government of India is duty bound to prevent the arbitrary killing by security forces. Article 3 of the United Nations Code of Conduct for Law Enforcement Officials recites that force is sparingly to be used.
15. Section 4 of the Act is violative of Article 22 of the Constitution and Section 50 of the Code of Criminal Procedure, 1973. Before a person is arrested he be informed the grounds of arrest which is not being observed instead persons are arrested on mere suspicion of having connection with ULFA. It is stated young and old are arrested every day by the armed forces and detained for interrogation and not handed over to police for days together.
16. In this case the respondents in their return averred Armed Forces are strictly instructed to act and to use minimum force with restraint. It is denied that nobody is accountable for any action taken under this provision of the Act. The allegation that in Upper Assam Districts, the civil law has ceased to operate due to excesses committed by the Armed Forces is denied. The incident regarding the Deputy Commissioner and Superintendent of Police, Tinsukia it is stated is not true. It is averred proper guidelines were laid down for compliance. The Armed Forces are not to harass innocent and law abiding citizens. Under 1958 Act person arrested is to be handed over immediately to civil authorities with least possible delay after arrest. This principle is being followed. There have been no detentions in Army Camps. Complete details of persons arrested, arms, ammunitions with reports of arrests and seizure are funished to local civil authorities without any delay. Indiscriminate killings are not resorted to by the armed forces as alleged in the petition.
17. The petitioners immediately after filing the writ petitions sought suspension of the 1955 and 1958 Acts. It was pointed out that a Single Judge of this Court suspended the notifications in 1981 and a like order may be passed. The learned Attorney General appeared on notice and pointed out that in the case AIR 1983 Delhi 513, Indrajit Barua v. State of Assam the interim orders passed by this Court were set aside and that the issue as to vires of the two Acts is no more res integra. The judgment in that case shows that against a single Judge's order of suspension of the two enactments a writ appeal was filed in this Court which was transferred by the Supreme Court. The Delhi High Court on transfer of the writ appeal set aside the interim order of suspension. The words "any officer of the Assam Rifles not below the rank of Havildar" in Section 4 and the words "any officer of the Assam Rifles not below the rank of Jamadar" in Section 5 of the 1955 Act were deleted. The learned Attorney General explained that the decision of the Delhi High Court binds the Benches of this Court,
18. On 7th February, 1991 in these proceedings we referred two questions to a Bench of three Judges one of the questions was "Whether the decision rendered by the Delhi High Court in Indrajit Barua v. State of Assam, AIR 1983 Delhi 513 has binding effect on the Benches of this Court?" This question was answered by the three Judges on 20th February, 1991 to hold the Delhi High Court decision binds this Court unless the decision is modified or varied in accordance with law. After that answer the petitioners argued that in the interest of peace, order and good administration the four cases may be referred to Larger Bench of three Judges. We see as on today the vires of the enactments is pending consideration in a petition under Article 32 of the Constitution. Further the two Acts were held not ultra vires of the Constitution, therefore it is not necessary to refer the cases to a Larger Bench at this stage.
19. We may now briefly note the arguments advanced in this Court in each of the case. The learned counsel for the petitioner in Civil Rule 2314/90 referred to the Preamble and basic structure of the Constitution. The view administered in paras 9 and 16 of the judgment reported in AIR 1963 SC 1295 Kharak Singh v. State of U. P. be accepted and held 4(1) is beyond the scope of the Parliament. In this regard paras 5, 10, 33 of the decision reported in (1982) 3 SCC 24 : (AIR 1982 SC 1325), Bachan Singh v. State of Punjab were relied on. The learned counsel referred to (1983) 4 SCC 645 : (AIR 1983 SC 1155) (paras 17 and 66), Deena v. Union of India and contended for "frisking" a female in the course of searches adequate safeguards are not observed. Section 5 is opposed to Article 22(4) of the Constitution and relied on (1982) 1 Gauhati LR 756 : (1983 Cri LJ 574), Nungshitombi Devi v. Rishang Keishang, (19S8) 2 Gauhati LR 137, Civil Liberties and Human Rights Organisation v P. L. Kukrety. There are no guidelines prescribed in the Act. The points decided in the cases of AIR 1960 SC 1080 (Para 24), Kavalappara K. Kochuni v. State of Madras & Kerala, (1978) 3 SCC 544 ; (AIR 1978 SC 1548) (Para 10), M. H. Hoskot v. State of Maharasthra, (1990) 2 SCC 456 : (AIR 1990 SC 1086). T. Devaki v. Govt. of Tamil Nadu, 1990(2) GLJ 350 (Para 13) Hemanta Kumar Sarma v. State of Assam, AIR 1966 SC 740 (Para 52) Ram Monohar Lohia v. State of Bihar, (1990) 1 SCC 328 (Para 14) S. M. D. Kiran Pacha v. Govt of Arunachal Pradesh, AIR 1962 SC 316 Collector of Customs v. Sampathu Chetty, (1980) 2 SCC 360: (AIR 1980 SC470) Jolly George Varghese v. Bank of Cochin, (1987) 3 SCC 50 : (AIR 1987 SC 656) (Para 5) Sheela Barse v. Secretary Children's Aid Society, (1990) 1 SCC 568 : (AIR 1990 SC 605) (Para 20) Kubic Dariusz v. Union of India were cited in support of the writ petition. It was urged the provisions in 1958 Act are opposed to the "basic dignity" and basic structure of the Constitution.
Civil Rule No. 2238 of 1990:
20. Nibaran Bora the President of Samjukta Loka Parishad described the Army of India as combatant force in the petition and averred the people of Assam are "non-combatant civilian population". He seeks to quash the President's proclamation as it is not in conformity with Article 356(a) of the Constitution. The petitioner seeks enforcement of Protocol-II of 1977 to Geneva Convention of 1949. He averred Operation Bajrang in Digboi in Tinsukia District under which Army entered the villages of Duliajan, Laina, Dimoruahola in Hakum and Kenduguri, Balyan, Borjan of Lakshmipathar forests is illegal. A woman of 52 years by name Pahari Das was killed. Meena Dutta and Deepali Dutta, the two females were kidnapped, villagers were evacuated, some were ordered to remain indoors. Farmers were prevented from harvesting paddy. The reports by David Bazar and Nagen Saikia, two Members of Parliament were relied to show women were gang raped. Due to army operation 1214 persons had to flee from their villages and took shelter in Namghar of Digboi Town.
21. In the petition the following documents are referred : The ratification of the Geneva Conventions of 1949 by the United Nations Organisation and Protocol I and II thereof. Ratification of the declaration of Human Rights, 1948 by India. Protocol II dated December 8, imposing special duty for care of the children. Article 7 prescribes specific duty of inspection in respect of sick, weak and wounded. Article 9 provided protection to medical and religious personnel. Article 13 dealt with the protection of civilian population from military operation.
22. The State of Assam in the return averred Pahari Das, a woman of 55 years, wife of Dharma Das of Bangaon village sustained bullet injuries in course of exchange of fire between Army and suspected ULFA extremists. She was removed to Dinjan Hospital and was recovered. She returned to her village. She was paid Rs. 1,000/- as ex-gratia payment for the injuries sustained. The kidnapping of Mira Dutta and Deepali Dutta is denied as false. A Magisterial enquiry was ordered in this regard in that the two were found at Borjan. As regards the other allegations it is stated that they are vague, no particulars are given. Farmers were not prevented from harvesting paddy crops. The Army it is averred to have distributed medicines, rice and others whenever villagers suffered hardships at their huts. The allegations that 1214 persons were compelled to flee from their villages in denied. Some villagers it is stated who were not used to cross fire therefore they left houses and took shelter in the Namghar and the State authorities took all steps for their safety. The allegation that large number of villagers were arrested is denied and later during the course of operation people in some areas to save themselves from getting injured in cross fire took shelter at safe places. The villagers were stopped from harvesting paddy in their respective paddy fields is denied and some allegations it is pointed out were made to malign the Government. The contention that seven sister States people of North East are discriminated is denied.
Civil Rule No. 2415 of 1990.
23. The petitioner is a journalist. He recounts what transpired in the Assam Movement in 1979. He states to have visited different places in Upper Assam after imposition of President's Rule. He collected materials from different places where atrocities were perpetrated by the Army personnel. The petition referred to the Movement as to Foreigners started by the All Assam Students' Union (AASU) in 1979 and stated the movement continued till Assam accord was signed by the Central Government, State Government, and all Assam Gana Sangram Parishad along with the office bearers of the All Assam Students Union (AASU). This movement was launched for deportation of foreign nationals from the State. Immediately on execution of the Assam Accord, the Government in power was dissolved and the administration of the State was run by a caretaker Government. Later elections were held and the elected Government was in power till the Central Rule was imposed.
24. The petitioner alleged Army authorities committed atrocities on innocent people. A large number of people lost lives, became homeless. Thousands were crippled and handicapped, Innocent people were assaulted. Women were raped. A reign of terror was let loose at Dibrugarh, Tinsukia and Lakhimpur. Vast areas covered by paddy were destroyed. Villagers were threatened at gun-points by Army personnel Passengers travelling by buses and people travelling by vehicles were harassed and assaulted without rhyme or reason. Army transpassed into the houses at the dead of nights under the purported object of detecting extremists, while doing so women were molested. Some teenaged girls were raped. The civil administration the petitioner stated has been collapsed. The army detained a large number of people of the State and not made over to the nearest police stations.
25. On November 30, 1990 the Deputy Commissioner and the Superintendent were searched and taken into custody. The Superintendent of Police, Sibsagar was detained and interrogated for five hours and was manhandled. Anjumati Bora, a student of 2nd year Higher Secondary Class of Sankardev College, Lakhimpur who is a permanent resident of village Chamugaon PS Bihpuria of Lakhimpur District was brutally raped by Army Jawans on December 7, 1990 at about 3-30 a.m. in her house. On medical examination the girl was found raped. The other victims of rape are Karuna Tani and Phulmoni Topne residents of Dongibil, Christianbasti of Bihpuria PS, were found raped on December 4 and 5, 1990 after medical examination. A large number of people were assaulted. Innocent people in the area were at the mercy of the army personnel.
26. The respondents in this case averred after the Central Rule a good number of local training camps and ULFA hideouts were raided by the security personnel leading to recovery of arms, ammunition, explosives, and incriminating documents. The camps of the extremists raided by the security personnel are : 1. Eight numbers of camps in Lakhipathar Reserve (Tinsukia district); 2. Two camps in Charaipung under Tinsukia district; 3. 12 Nos of ULFA's main and satelite training camps in Lakhimpur and Dhemaji districts; 4. 1 camp in Chapanalla in Nagaon district; 5. 1 camp in Rangdengiri under Meghalaya bordering Goalpara district. The Army operations in Lakhimpathar area excavated a mass grave containing 15 dead bodies in varying degrees of decomposition. It is averred the extremist outfit was initially confined to Brahmaputra Valley districts of Dhemaji, Lakhimpur, Sonitpur, Darrang, Dibrugarh, Tinsukia, Sibsagar, Golaghat, Jorhat, Nagaon, Kamrup, Bar-peta, Nalbari, Goalpara and Bogaigaon and in recent times their tentacles spread to Brahmaputra valley districts of Dhubri and Kokrajhar, the hills districts of North Cachar and Karimganj and Hailkandi. In a joint search conducted by police and the security personnel on December 27, 1990 the house of one ULFA activist of Kachugaon (Kokrajhar district) army type uniforms were found indicating network of extremists. Two hills districts of Karbi Anglong and North Cachar with their vast jungle areas are providing temporary hideouts and routes to the neighbouring States of a Nagaland and Meghalaya. The Barak Valley districts of Cachar, Karimganj and Kailkandi provided safe sanctuaries. Besides, Silchar and Karimganj districts of Barak Valley and Dhubri district of the Brahmaputra Valley are used by the insurgents for training purposes.
27. The learned counsel for the petitioner argued Sections 3,4 and 5 of the Act of 1958 that powers can be used only in aid of the civil power. The counsel referred to AIR 1983 Delhi 513, Indrajit Barawav. State of Assam and stated what is set out in paras 56, 58, 59, 81 and 86 are not correct statements.
Civil Rule No. 11 of 1991 --
28. The Editor of "Boodhbar", Parag Kumar Das is the petitioner. He seeks suspension of Sections 4 and 6 of the above Act of 1958 and guidelines be given by the Court to protect civilians during counter insurgency operations in North East. In Nagaland State in 1950's village after village were burnt down. Khonoma was burnt seven times. Hundreads of Pastors, village elders, school teachers were tortured. Thousands were beaten up, hungup side down. Cruel punishments were inflicted. Village economy was totally disrupted. Armed Forces were sent to Mizoram in 1960's. Aizawal was bombed, thousands of men and women were beaten and killed, arrested and detained. In June, 1986 Mizo Accord was settled. 374 persons were paid compensation of nearly Rs. 2 crores. The petitioner referred to the judgment on March 31, 1989 passed in Civil Rule No. 2285 of 1988 (The Aizawal Town Damage Compensation Committee v. The State of Mizoram) wherein 374 persons were given a sum of Rs. 1.9 crores as compensation for losses suffered during the period of insurgency. In Manipur in the year 1980 human rights were violated on the enforcement of the Act. Chaoba Singh's case is referred in that a widow of the deceased was awarded compensation. When Armed Forces conducted operation in I980's in Hills districts of Manipur they destroyed ecology, tortured, raped and killed people. The 'Operation Bluebird' is a documented case released by the Amnesty International showing violation of human rights. The petitioner states even the office of the Sub-Divisional Magistrate, Paomata, Senapati District in Manipur was raided without a warrant and arrested Chief Judicial Magistrate, Tamenglong, Manipur and was tortured. Capt. S. S. Khera of 12 Assam Rifles assaulted one Naba Singh, Executive Magistrate. Tadubi, Senapati District and injured his left ear on August 26, 1990. The Nagaland Times on August 15, 1990 reported a woman of 70 years old was raped by a Jawan of 16 Assam Rifles. 23 persons were tortured by the Armed Forces on October 31st, 1990. The petitioner averred that under the Constitution Martial Law cannot be imposed.
29. The Government of India in their return stated that the allegations made with respect to Manipur and Nagaland are not parties in the case and not relevant in the instant case. Therefore, any allegations made as respects the above two States cannot be answered by the State of Assam. Learned counsel for the petitioner has relied on AIR 1954 SC 119 (paras 8 and 15) Dwarkadas Shrinivas v. Sholapur S. & W. Co. Ltd., AIR 1962 SC 305 (Para 37) Sakal Papers (P) Ltd. v. Union of India, AIR 1970 SC 564 (paras 37 & 46) R. C. Cooper v. Union of India and AIR 1978 SC 597 (paras 66-68). What has been observed in the United Kingdom's Ireland Case of Human Rights was cited. The learned counsel urged that the instances are not isolated case but demonstrate pattern of barbarism and violation of human rights. The Parliamentary debates were extensively read. Vol. 18, Pages 1349 to 1464, 1440 and on August 11 to August 22 were read. Constitutional debates, Vol. 5 page 864 were cited. Jungle Warfare a book was read at page 61, National Security page 190, Nagaland File page 190-191, C.Os address to officers, were read. A Circular dated August 7, 1988, Ministry of Home Affairs, when army can be used in aid of civil power -- para 'G' was read, Articles, 352, 355, 356 were relied on. National Police Commission Vol. 7 with reference to North East have been referred to.
30. In this regard the learned counsel referred to AIR 1962 SC 1753 (para 16) West Ramnad Electric Distribution Co. Ltd. v. State of Madras, AIR 1965 SC 1954 (para 40) Morvi Mercantile Bank v. Union of India, AIR 1981 SC 298 (Para 184) A.B.S.K. Sangh (Rly) v. Union of India, AIR 1984 SC 802 (para 10) Bandhu Mukti Morcha v. Union of India, AIR 1982 SC 879 (para 8) Randhir Singh v. Union of India, AIR 1967 SC 829 (para 17) Harichand Sarda v. Mizo District Council and AIR 1957 SC 397 (para 34) Pannalal Binraj v. Union of India.
31. 1975 Cri LJ 661 (para 8) (Guj) Jayanatilal Mohanlal Patel v. Eric Renison is referred and it is argued proper guidelines are not precribed to the Army Officers. As respects Section 4(b), AIR 1972 SC 110 (para 21) Rahman v. State of U. P. and AIR 1971 SC 1050 (para 15) Matru alias Girish Chandra v. State of U. P. are referred. It is pointed out religious places of Christians are dismantled. Section 4(c) has been referred and the transitory powers of Section 43, Cr. P.C., Section 41, 42, 129, 130, 137 were referred. Assam Police Manual -- Part 5, Vol. II pages 185, 199 to 208, 338 is referred. (1944) 1 All ER 326 Dumbell v. Roberts was referred, The requirement of production of the arrested person within 24 hours it was argued, was observed in breach, AIR 1953 SC 10 (paras 16 and 20) State of Punjab v. Ajaib Singh was referred to. As respects Section 4(d) -- search without warrant -- Section 100, Cr. P.C. Clause (3), Section 165, Cr. P.C. were adverted to. Whether Act 58 is a special law, 1983 Cri LJ 1153 (para 15) (All) State of U. P. v. Radheshyam Tripathi, AIR 1980 SC 2147 Maru Ram v. Union of India, (1987) 3 SCC 340 : (AIR 1987 SC 1646) (para 13) Ajmer Singh v. Union of India were cited. AIR 1955 SC 196 (Head Note 'C') H. N. Rishbud v. State of Delhi was referred.
32. The learned Advocate General in these cases relied on the arguments advanced in the Delhi High Court and contended that the judgment binds the Benches of this Court. The President under Article 356 of the Constitution of India properly imposed the Central Rule in Assam on November 27, 1990.
33. The Central rule was imposed 40 days before the normal term of five years of Assam Legislative Assembly has expired on January 9, 1991. Therefore we hold that the relief sought for as on today (after January 9) has become infructuous. We may observe important points are raised in these cases touching the issues as to Central rule and maintenance of public order. We do not wish to deal with the issues as the relief in this regard has become infructuous.
PART-II
34. In this part the back ground materials as to how Assam is declared a disturbed area is traced out. In this part we summarise facts averred in the pleadings and the numerous documents filed in these cases. Between the years 1979 to 1985 there was an agitation in Assam relating to foreigners. The agitation in the State came to an end after "Assam Accord" was signed on August 15, 1985 by the Home Secretary to the Government of India, General Secretary of the All Assam Students' Union, the Convenor of All Assam Gana Sangram Parishad and the Chief Secretary to the Government of Assam. The foreigners who came to Assam between January 1, 1966 and March 25, 1971 from outside India are to be registered as foreigners which the high dignitaries agreed. The economic development and some issues relating to international borders of Assam some agreement was reached. Thereafter on October 14, 1985 Asom Gana Parishad (AGP) was registered as a political party and that party formed the Government on January 9, 1986 after elections in December, 1985 and continued in power till November 27, 1990 the day on which the President of India imposed the Central rule in Assam.
35. Insurgency and communal clashes are unknown in Assam except once or twice the occurrence of linguistic riots. ULFA was formed on April 14, 1979 at Sibsagar. The aims of the ULFA were to secure sovereignty for Assam through armed revolution. The objects of ULFA is to safeguard the interests of seven States of North East and to obtain control over resources like oil, natural gas, forests; to gain public support against Indian and non-Indian exploitation; to develop good relations among the seven States through the National Socialist Council of Nagaland (NSCN), the United Liberation Front of Assam (ULFA), the United National Liberation Front of Manipur (UNLF) together formed a united front called Indo-Burma Revolutionary Front (IBRF) in order to build a united struggle for independence of Indo-Burma. An agreement dated May 22, 1990 was signed by Chairman of NSCN, Chairman of ULFA and the General Secretary of the UNLA. The agreement was found in a camp at Patharkandi in Cachar district on the night of June 27, 1990. ULFA between 1980-90 collected 1933 licensed arms of various descriptions from licensed owners, indulged in occasional bank decoities along with NSCN and PLA and ULFA; extorted large amounts from traders. ULFA members took shelter at places which provided escape routes to Burma, Meghalaya, Arunachal Pradesh and Nagaland.
36. To create terror among the people ULFA killed 1 in 1984, 3 in 1985, 10 in 1986,5 in 1987, 24 in 1988, 28 in 1989 and up to September 27, 1990 the number of killings rose to 63 -- in all 134 persons were killed. About these murders ULFA issued press statements accepting that victims were killed by them. They kidnapped 147 persons out of whom 126 were recovered, 21 are yet to be recovered, issued leaflets, pamphlets, in which it was recited that Assamese people were exploited by the colonial regime at Delhi; exhorted Assam should become independent of the Administration of Delhi and advocated secession of Assam from the Indian Union.
37. Suren Dihingia of ULFA executed an agreement with UNLF of Manipur for providing arms and ammunitions in February, 1984. As per this agreement PLA would help ULFA by providing arms and ammunitions and maintain good relationship. ULFA established contacts with other underground outfits like People's Liberation Army of Manipur (PLA), United National Liberation Front of Manipur (UNLF), Kachin Independent Army (KIA) and National Socialist Council of Nagaland (NSCN) and with the help and assistance of NSCN, KIA, ULFA trained their cadres in Upper Burma.
38. In a document circulated by the Indo-Burma Revolutionary Front (IBRF) on May 22, 1990 it is recited that Indo-Burma area requires to be liberated from Delhi (This document was discovered from a ULFA camp at Lakhimpathar in Tinsukia), that in the regions of Indo-Burma, North East, North Western Burma inhabitants are of a distinct race with a distinct identity and culture. "The long struggle of independence of various ethnic groups of the region is going down the road to capitulation" in Mizoram and Tripura as in the two States the leaders were unable to see "the potential strength of the region as a whole".
39. The ULFA hideouts and training camps were raided during the night of November 27, 1990. Sizeable arms, ammunitions, explosives and other incriminating documents were recovered. Eight camps in Lakhipathar Reserve in Tinsukia district, two camps in Charaipung in Tinsukia district, 12 ULFA's training camps in Lakhimpur and Dhemaji districts, one camp in Chapanalla in Nagaon district and one camp in Rongdeng-giri under Meghalaya bordering Goalpara District were raided by the Army. Fifteen dead bodies were recovered of which seven were identified. Six dead bodies -- two in Sonitpur district, one in Barpeta district, one in Dhemaji district and two in Nalbari district suspected killed and kept hurried were recovered, out of which four have been identified. The officials and business community were receiving letters for ransom of high figures from ULFA, otherwise they were 'threatened to be extinguished'. The traders were under the constant threat as a result there was exodous of traders from Assam. People were not allowed to operate bank accounts. Many became victims of assaults and attrocities. Illegal arms were distributed and sold out to some sizeable section of the society. ULFA claimed that they have no alliance with political parties who have allegiance to the Constitution of India. The civil administration came to a grinding halt. Out of fear no person lodged complaints to police even of cognizable offences. The arms and ammunitions from civilians were snatched away. There were in 1984 -- 2 attempt to murder, 1985 -- 4, 1986 -- 1, 1988 - 4, 1989-3 and 1990 -- 15. There were dacoities in 1984-- 1, 1985-- 1, 1986 -- 2, 1987 -- 2, 1989 -- 3 and 1990 -- 1, in all 8. Robberies were in 1984--1, 1985 -- 1, 1986 -- 2, 1987 --6, 1989 -- 3, 1990 -- 1, in all 14. Attempted robberies were in 1986 -- 2, 1987 -- 1, in all 3.
To the extent known, there were 2 extortions in 1989 and 14 in 1990 which were registered. Extortions attempted were in 1987 -- 1, 1988-- 4, 1989 -- 1, in all 6. Kidnappings were in 1989 -- 6 and 1990 -- 123, in all 129. Arms snatching in 1989 --6 and 1990-- 1921. The ULFA murdered the Superintendent of Police, Dibrugarh, his PSO and the driver, the wife of the Superintendent of Police, Dibrugarh, the in-charge of Laluk Police Outpost, two Presidents of the Chambers of Commerce, Guwahati, the President of the United Minority Front, several Congress (I) leaders and activists, businessman and students and for all these murders they claimed responsibility.
PART -- III
40. In this part we consider the validity of the impugned notifications under the 1955 and 1958 Acts. In this regard rights which Indian citizens have under the Constitution relating to life, personal liberty and hearth of a person are briefly recounted. These rights are founded in common law of United Kingdom which is accepted as common law of India under the Constitution.
41. Dicey in Constitutional Law pages 207 and 208 stated -- "The right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification". This statement is accepted as the corner stone of the common law principles. Field, J., an American Judge defined "life" in the case of Munn v. Illinois, (1876) 94 US 113, 24th Lawyers Edition page 77 : "Something more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, of the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world." This case is approved and followed by the Supreme Court of India. In Boiling v. Sharpe (1953) 98 Law Ed 884, it is observed that liberty is not confined to bodily restraint. This right is regulated to protect social interests like the exercise of police power, the power of eminent domain, the power of taxation. This case again is followed in India. Blackstone in his Commentaries on the laws of England, Book I at page 134 observed -- "Personal liberty includes the power to locomotion of changing situation, or removing one's person to whatsoever place one's inclination may direct, without imprisonment or restraint, unless by due course of law". Personal liberty is explained to mean free from restrictions and encroachments on private life. Right to privacy is held to be part of personal liberty. A person's house is referred as a "castle"; rampart against encroachment on personal liberty. The privacy is accepted right in Indian Statutes. An individual has a right to be free from restrictions and encroachments. Article 21 inheres rights which are common law rights (See AIR 1963 SC 1295, Kharak Singh v. State of U.P. where the above American cases are followed). What is called hearth house of a person was described in 1753 by William Pitt, a Prime Minister of England in the following words : "The poorest may in his cottage bid defiance to all the force of the Crown. It may be trail; its roof may shake; the wind may blow through it; the storm enter; the rain may enter but the King of England cannot enter; all his forces does not cross the threshold of that ruined tenement." These incidents of a dwelling house are accepted rights in common law. In the case of Frank v. Maryland (1959) 359 US 360 they were accepted as common law rights.
42. The Indian Parliament regulated these rights. In the Code of Criminal Procedure of 1973 an unlawful assembly can be dispersed by a Magistrate. In his absence by a Police Officer by summoning all male persons other than the Armed Forces. That was decided in England 200 years back in (1841) Cr. Mar. 314. This is accepted to be law in India. If the Police Officer is unable to disperse he can request armed forces to disperse the assembly. These are set out in Sections 129 and 130, Cr. P.C. A person can be arrested without a warrant under Section 41, Cr. P.C. How the arrest is made is set out in Section 46. Search of a place contained in Section 47. Arrested persons should not be subjected to unnecessary restraint is set out in Section 49. Search of arrested persons in Section 51(1). Seizure of offensive weapon in Section 52. Examination by medical practitioner in Section 53. Search of a place is made under Section 100. Power to seize stolen property is in Section 102. Prevention of cognizable offences in Sections 149 and 151. Prevention of injury to public property in Section 152.
43. In AIR 1953 SC 10, State of Punjab v. Ajaib Singh the Supreme Court held arrest without warrant requires a greater protection than arrest under warrant. Personal liberty was stated to be a fundamental right in the case of AIR 1963 SC 1295 Kharak Singh v. State of U.P. In AIR 1955 SC 196 H. N. Rishbud v. State of Delhi, the following five principles are held to be part of a criminal law (i) inquest, (ii) investigation, (iii) arrest, (iv) search of places, and, (v) formation of opinion and the trial. All the five rights are given a go by when an Army Official exercises power under Section 4 read with Section 5 of the Act and it is urged citizens do not complain out of fear.
44. This court in four or five cases elucidated the rights of citizens in proceedings under the 1958 Act. In(1985) 1 Gauhati LR 1, Ramnath Das v. State of Tripura, it was held that it is incumbent on the authority to supply the person arrested the grounds of arrest. Women are not to be kept in police station. If they are kept they stand dishonoured. In (1982) 1 Gauhati LR 756 : (1983 Cri LJ 574) N. Devi v. Rishang Keisang, the person arrested by any officer cannot be interrogated. Army officers do not have the power to investigate and interrogate as to the involvement of the arrested person in any offence. In (1988) 2 Gauhati LR 137 Civil Liberties & Human Rights Organisation v. P. L. Kukrety if persons are detained in violation of the provision of the Act, this Court ordered compensation to the injured persons Rs. 5,000/- and to some of the families Rs. 20,000/- as compensation to be paid by the army authorities.
45. To obviate difficulties in the instant cases we referred the following question to elucidate the two of the above cases. The question referred was "Whether the Army authorities under the provisions of the Armed Forces Special Powers Act, 1958 (Act No. 28 of 1958) can arrest a citizen or an individual, male or female, without any invitation on the part of the Police Authority or without reference to Police authorities of the State wherever and whenever the above Act 28 of 1958 is enforced?" The Bench of three Judges answered the question : "For the reasons stated above, the army authority can arrest a citizen or individual, male or female, without any invitation on the part of the police authority or without reference to the police authority of the State, wherever and whenever the Act is enforced."
46. This brief resume' shows that the distinction of cognizable case or non-cognizable case, arrest by a warrant or without a warrant are not actually in practice observed by armed forces under 1958 Act. Section 4(d) of the 1955 Act states any officer, Warrant Officer, Commissioned Officer or Non-Commissioned Officer can arrest a person without warrant who has committed a cognizable offence or on suspicion. As regards house where a person resides the Army Officers can search without warrant and recover any property.
47. A pamphlet issued in 1969 by the Government of India was republished in 1975 and published in latter years as guidance for the Army in this regard. The pamphlet is treated a secret and confidential document and we could not see and read it. In 1970, Basic Book instructions were issued by the Government of India for the benefit of the Armed Forces whenever they are called in aid of civil power. Armed forces can search a person in the presence of two persons under Section 100 of the Code of Criminal Procedure. That provision is not observed by the army authorities. Anything seized must be put in writing and signed by the officer making the search. But actually there are no Rules to guide the actions of the authorities under the Act. The ordinary protection guaranteed under the laws life and limbs are not regulated under 1958 Act. Therefore, we hold the quality of life in the area where the Act is enforced by notification the citizen's life stands radically changed to his detriment in view of the actual practices followed.
48. While these cases were being heard in Civil Rule (HC) 24/91, instructions issued by the Central Government to the Army authorities on March 31, 1982 under the caption of "Aid to Civil Authorities", a document covering many instructions to Army officials, were considered. The Assam Police Manual Part V, which contains instructions issued by the Inspector General of Police, Assam at Gauhati on June 27, 1981, Circular No. 3 addressed to all Superintendents of Police, D. I. Gs. Range in Assam were also considered for the determination of the issue relating to women. In that case it was held whenever women are interrogated or questioned as witness they are not to be summoned to a police station. It was further held women when arraigned as an offender or a mere witness, no police or army officer can summon a woman to a police station house or army camp for interrogation even under 1958 Act. A woman can be interrogated at a place "where the woman resides". Whenever Army officials have to deal with women under Act 28 of 1958, no woman is expected to be taken to the Army camp for interrogation. It was specifically held that a woman is not to be requisitioned by the Army officials for attendance at any place other than her residence, as provided in Section 160(1) of the Code of Criminal Procedure. When a male or female is arrested for interrogation or for investigation and army officials after the arrested are handed over to police authorities whether the Army officials can take back the custody of the arrested person for interrogation from the police authorities was also considered in that case. For the purposes of guidance and compliance of the army officials and police establishments it was held that they cannot do so.
49. The 1958 Act covers ten per cent of the population of India. In the Census of 1970's the population of the North East India is 8 per cent. For various reasons in Assam State the Census in 1980 did not take place. Extrapolating the figures of 1970 with all India figures it is ascertained the population of North East is 10 per cent of the Indian population. In all the seven States at one point of time or other Armed forces were deployed to suppress insurgency. Therefore, the validity of this Act is of great importance to the entire North East Region.
50. We may usefully recount the experience of other countries where insurgency occurred. In Malaya under the British Raj emergency was declared between June, 1948 to July 33, 1960. Sir Winston Churchil, the Prime Minister of England appointed General Templewood(?) to quell the insurgency. The General adopted the method of seggreg-ating the insurgents from the peace loving citizens by shifting population. This measure proved unsuccessful. Later on, for other measures adopted the peace and tranquillity prevailed in Malaya. In India, in Telengana of Andhra Pradesh Armed Rebellion occurred in 1949 and for two years the insurgency did not abate. Finally, after adopting measures referred as Sardar Patel's measures (S.P. measures) the rebellion was quelled. The S. P. measures were operated from the hypothesis that insurgents place little value for their life. They are prepared to die and often do not care for property. But it is seen the safety and honour of the insurgent's mother, safety and honour of his sister, wife and children the insurgents value more than their own life. Therefore in what is called S. P. measures of Sardar Patel measures the establishment harasses the mother, the sister, the father, the wife and the children and other kin of the insurgents, like asking them to visit police station intermittently, making them stand for public gaze wherever it is considered as not honourable to do so. These measures when adopted the insurgents surrendered. In the numerous cases filed in this Court some S. P. measurers were found adopted.
51. In North East for historical reasons British Raj enforced different principles of administration demarcating the area as excluded area, partially excluded areas etc. as stated above. For some time administration was left to the Tribal Chiefs and at times whenever insurgency occurred, what is known as lining up measures were adopted in that all males of village were lined up and searched to isolate insurgents. In tribal society they consider this mass drill worse than death.
PART IV
52. The Administrative Reforms Commission under the Chapters Centre-State Relationship pages 36-37 traced out the history of the armed batallions ever since the Crown Representative's Force was raised in 1939, as a Reserve Force to aid the former princely States in maintaining law and order. This Reserve Force was brought under Central Act called Central Reserve Police Act, 1949 (CRPF). Three other para-military forces were raised subsequently, namely, the Indo-Tibetan Border Police (ITBP) in 1962, the Border Security Force (BSF) in 1965 and the Central Industrial Security Force (CISF) in 1969, the Railway Protection Force in 1985. Now the Government of India has created one more Force called Rashtriya Rifles, which is now working with 400 personnel and information is there to raise it to 10,000 personnel. But the statutory provision has not been enacted as yet. Central Force then are deployed in Jammu and Kashmir, Manipur, Tripura and Sikkim all these States are exempted from payment of charges. All other States are required to pay.
53. The Administrative Reforms Commission considered Articles 352 & 355 and opined that it does not confer on the Union Government power for deployment of armed forces in Constituent except at the request or with concurrence of the State Government. It was observed by the Commission as 'public order' and 'police' the two heads fall in State sphere, the responsibility of a State Government in regard to these two subjects has to be respected. Sarkaria Commission in Chapters II, VI and VII of their report said that safety or protection of installations, factories, office buildings of the Central Government like Railways, Ports, Airways, Posts and Telegraphs is the responsibility of the Union Government. The Centre can issue direction under Article 257 or Article 355 if a State Government chooses to withhold co-operation during internal disturbances. Such a contingency arose once in Kerala in September, 1968 where the Union Government deployed the Central Reserve Police Force suo motu for protection of the Union Government offices in Trivandrum during the strike of the Union Government employees. The second time it occurred in West Bengal in 1969 for protection of Farakka Barrage in connection with clashes between the workers of the Durgapur Steel Plants and The Uttar Pradesh Provincial Armed Constabulary incident stationed by the Union Government at the plant. In the instances of Kerala and Farakka Barrage, the Union Government did not agree with the demand of the State Government for withdrawal of the Central Reserve Police Force but in the third case of Uttar Pradesh the Union Government agreed.
54. The Sarkaria Commission recommended States to develop their capability to deal with public order and suggested to accept and follow recommendations of the National Police Commission in their Seventh Report. A zonal Council is recommended to be formed. The Union Government and the States were recommended to monitor, co-ordinate and control any inter-Stare movements of State Armed Police under Zonal Councils. The National Police Commission observed "Central Reserve Police Force have become very unpopular "in North East (paras 59, 25, page 82). "The lessons learnt both in Mizoram and Nagaland tell us that effective police action can be very successful. The capacity of the police to absorb casualties inflicted by the insurgents is relatively low but it can play important complementary role to the army and para-military forces in tackling the situation. The army as far as possible, not to be used forday-to-day policing..... (page 82 paras 59, 25).
PART V
55. The Central Government and the State Government at the hearing on January 3, 1991 was directed in Civil Rule No. 2415 of 1990 to produce all materials based on which S. 3 notification under the 1958 Act was issued. On Januarys, 1991 an application was filed seeking a week's time to file necessary documents. Seven days' time was granted. Thereafter on February 26, 1991 an application was filed by the Union of India in that it is stated that the Central Govt. decided to produce the report of the Governor dated November 26, 1990 addressed to the President of India inviting Central Rule in Assam. Based on that report the impugned notification was promulgated. Thus, except the report of the Governor no other material is produced. The learned Advocate General, Assam stated that there is no other material except the report of the Governor to support the notification of the Central Government.
56. The Governor's report we extract in full:
"D.D.Thakur Governor November 1990 Dear Rashtrapatiji,
The situation in Assam has been found to be disturbing ever since I took over as Governor of Assam on May 2, 1990. I have kept the Central Government fully informed not only about the prevailing state of affairs but also about my anticipation regarding the shape of events to come. I have in my reports described more than once the situation as grim calling for immediate attention of the Central Govt. Now, since there has been change of Government in Delhi, I consider it my constitutional obligation to apprise the Central Govt. of the gravity of the situation the State is confronted with.
As would appear from my earlier report, as many as 113 innocent people have been gunned down by the activities of a terrorist organisation called ULFA (United Liberation Front of Assam). This organisation is an off-shoot of the so called Assam Movement which was spearheaded mainly by AASU from 1979-85 and which culminated in the Assam Accord of 1985. After accord, however, a sizeable segment of the youth involved in the sabotage and violence during the movement parted company with the A.G.P. and decided to embark upon an armed struggle for the liberation of Assam from the Indian Union and for converting it into an independent sovereign State. By 1967, this organisation was given a proper shape with a sizeable cadre strength. Having done so, the organisation embarked upon two fold strategy -- to create a terror amongst the people by gunning down selective targets and utilising the terror so created for large scale extortion of money from the affluent sections of the society. Evenly matched was the wrath on the dedicated police officers and the political figures who had the potential of confronting them. In the process, as many as 58 political workers have been gunned down during the period of last 3 years. The number of officers/officials killed is about 19 while the rest of the killings were directed to facilitate large scale extortion. Small groups of people fully armed by modern weapons contacted people with means, threatened them with death penalty if their demands were not met. Those who stood up against their criminal demands were eliminated making it unmistakably clear to everyone that the payment of ransom was the only way to save one's life.
Apart from killings, according to reports received, many people were kidnapped and released after the ransom was paid. The extortion, to begin with, was on a limited scale. Magnitude of loot and plunder however became colossal in due course of time, presumably in view of the State Govt.'s failure to act. The districts of Tinsukia, Dibrugarh, Sibsagar, Jorhat and Nagaon on the South Bank of Brahmaputra and those of Dhemaji, Lahimpur, Sonitpur, Darrang, Nalbari and Barpetia on the North bank, were the worst sufferers. None was spared. Tea companies, traders -- small and big -- officials who had the reputation of being corrupt were treated all alike. Summons were issued to the members of the Tea Association to meet the ULFA gangsters at various places in Upper Assam to negotiate the quantum of ransom. Others were summoned to centres of collection along with the evidence of their financial capabilities. No oral evidence was accept. Income tax returns and assessment orders were made the basis for the determinations of the amount of ransom and while assessing the capability to pay 3 to 4 times more than the asserted income was assumed as the total income of the persons. The rough estimate about the total amount collected so far runs into anything between Rs. 400 to Rs. 500 crores.
Having succeeded in their errand of killing and extortion without the least resistance from any quarter, the organisation took over the executive, administrative and judicial functions particularly in the district of Lakhimpur, Tinsukia and Dibrugarh. Complaints regarding drinking, gambling, theft, bribery, eve-teasing and illicit distillation were openly received and enquired into by ULFA cadres and punishments were awarded publicly. The punishment extended to whipping, kneeling and shaving of the heads and other modes of physical torture. Even the police officials were subjected to these punishments without any resistance from anywhere.
Out of the colossal amount of money collected, they started a programme to wage a war against the Govt. of India. They procured latest weapons, partly from outside the country and some from within the country. Simultaneously, they recruited people to constitute a regular ULFA army and deputed them to undergo training in Kachin area of northern Burma. In addition, about 1,600 firing weapons which had been ordered to be deposited with the D.M. by the licence holders, were snatched away by ULFA activists. According to rough estimates based on reports, ULFA has regular trained army of 3000 men in addition to a large number of persons who act as informers, intelligence collectors, couriers, camp followers etc. Having imparted training to their cadres in Burma and to save expenditures on training, more than 40 training camps have been set up in the aforesaid districts. The camps are being run without fear from any authority and even in broad day light.
Coming to the attitude of the State Govt. it is extremely surprising that out of 113 murders committed so far, not even a single case has been fully investigated by the police. The reports received suggest that if at all the accused were arrested, the designated courts released them on bail without any resistance from the State. The orders granting bail under the TADA can be passed only in rare cases and that too after specifying certain conditions. Everywhere else in the country the States concerned agitate the matter before the higher court like High Court and Supreme Court. Not even in a single case an appeal or revision has been filed against the orders of the lower court before the High Court or Supreme Court. The then Home Minister, Mufti Mohammed Sayeed, during his two visits to Guwahati, impressed upon the State Govt. the desirability of agitating the bail matters in the Supreme Court. I repeated this request a number of times to the State Govt. but without any result.
The political affairs Committee of the Union Cabinet invited me and the Chief Minister to one of its meeting at PM's house some time ago and the Committee impressed upon the C.M. to take stern action against terrorism. He asked for additional force which was agreed to. In another meeting which the H.M. took in North Block and later at his residence, was attended by Cabinet Secy, Home Secy., myself and Jt. Secy/ Home. The Chief Minister asked for SIRs, Maruti Jeeps etc. These, I am given to understand, were supplied. The forces also arrived and the same remained camping in the barracks and were not deployed. The MHA requested the C.M. to declare the Upper Assam as a disturbed area so as to authorise the Central Forces to arrest, search and seize, to which the C.M. agreed. Subsequently, the C.M. informed me that his party and the Cabinet was not agreeable to that being done.
H. K. L. Das, General Manager, IOC Refinery, Gauhati his son and driver were kidnapped by ULFA. Eight people who threatened the G.M. two days before the kidnapping were arrested by the local police, but their arrest was protested against by AASU which resulted in their release. Reports from Upper Assam suggest, as and when police takes action against ULFA activists, AASU and their supporters organise large scale demonstrations, making it difficult for investigating agencies to proceed. Even in the capital city of Guwahati, large scale extortions are going on and not even a single case has been investigated. The world's biggest tea auction centre where more than 150 million Kgs. of tea is auctioned every year, is about to be closed as a result of the withdrawal of major buyers like Liptons India Limited and Brooke Bond India Limited. The episode of evacuation of senior executives of Doom Dooma Tea Company in Tinsukia vividly depicts the extent of the fear which has been caused.
Hundreds of people have been robbed of their maruti cars. The amount of ransom varies from 2 Lakhs to 75 Lakhs of rupees in some cases. Many people have been mercilessly tortured and some of them are still in a critical condition at woodlands Nurshing Home in Calcutta. Hundreds of traders have closed their establishments and gone away to other parts of the country. Trade, commerce and industry has been hit hard. Central public sector corporations senior executives are reluctant to stay. Some have already left. Some of the tea companies are almost without senior supervisory staff many of them having shifted to places outside the State.
I have had repeated discussions with the Chief Minister and Home Minister. Neither of them is prepared to accept the responsibility since the Home Department has been unimaginatively bifurcated into Home and Political Departments with lot of overlap-pings and anomalies.
The cumulative consequence of all this is that the entire State is gripped by a fear psychosis. The holders of public offices have been rendered totally ineffective, The statutory authorities are in a state of panic incapable of discharging their functions. The holders of constitutional offices stand totally emasculated so much so that the State Cabinet cannot even discuss the situation. Members of the Council of Ministers cannot express themselves openly since they doubt the bona fides of each other in so far as their attitude towards ULFA is concerned, It is one of the classic examples of culpable inaction on the part of a State Government.
The loss of faith in the efficacy and the credibility of the Govt., apparatus is so great that the thin distinction between ULFA, AASU and AGP which existed at some stage, stands totally obliterated. Glooms hangs over the whole State. By the fall of the dust, the people are huddled in their homes. Nobody's life, limb, property or honour is safe. The basic attributes of a civilised and orderly society stand annihilated.
Rule of law, equality before the law, right to life, right to property, right to protection from the State against the might of the mightly have all been negated thus bringing about a situation which propels to state that the Government of the State cannot be carried on in accordance with Constitution of India.
Yours Sd/-
(D.D. Thakur) 26-11-1990.
Shri R. Venkataraman, Hon'ble Rashtrapatiji, Rashtrapati Bhavan, New Delhi."
57. From the report of the Governor the following districts are found disturbed areas: Dibrugarh, Tinsukia, Sibsagar, Jorhat, Nagaon, Dhemaji, Lakhimpur, Sonitpur, Darrang, Nalbari, Barpeta and the city of Guwahati. Since the Central Government have stated that there is no other material except that of the Governor's report there is no justification, to declare other districts as disturbed area or in a dangerous condition under the 1958 Act.
58. The State referred to the intelligence reports, notification issued by the Central Government on November 27, 1990 under the 1958 Act and declared the State as a disturbed area under 1955 Act. The State at first submitted not to disclose intelligence reports or sources of reports in the interest of public as documents if disclosed are likely to prejudice and affect operation of the Intelligence Department.
59. In the application it is stated 100 persons were killed, many were kidnapped, enormous amounts were extorted from traders, arms and ammunitions were snatched away from licence holders, bank were looted, highway robberies were committed therefore public order was affected. Late D. S. Negi, S.P. Dibrugarh, Mrs. Mullick, wife of the then S.P., Dibrugarh were the victims of ULFS assaults. High Officials of Public Sector Undertakings were kidnapped and their release could be obtained on release of four hardcore extremists. Maruti Cars and other vehicles were snatched away causing serious concern to the owners of these vehicles. A section of people were tortured when they refused to obey orders of the extremists. The Civil Police and para military forces for the above reasons were required to be strengthened in the State. To support the notification under 1955 Act some intelligence reports were delivered to us claiming privilege and a request was made that they may not be treated as open documents.
60. On a consideration of report of the Governor and the notification of the Central Government under 1958 Act we hold there is no material to support the notification as respects districts of Golaghat, Morigaon, Dhubri, Kokrajhar, Bongaigaon, Goalpara, Kamrup (excluding the City of Guwahati), Karbi Anglong, North Cachar Hills, Cachar, Karimganj and Hailakandi.
61. The learned Advocate-General who appeared for the State and the Central Government argued, this court should not look for adequate or sufficient evidence to sustain the impugned notification but look into the circumstances, whether broadly there was evidence to justify for the Central Government to make the declaration. We have earlier stated the moment notification is issued, the norms of life stand altered, the day to day life and quality of life changes, people are exposed to the authority of the armed forces. Therefore, we have looked at the issue strictly to see whether or not there is material to justify the entire State as disturbed area.
62. A word more about the return filed on behalf of the State of Assam where it has been stated that the said notification under the 1955 Act was issued to give special powers to police and para-military forces. It is averred members of the CRPF can exercise power under this notification as they are police force. We cannot accept this contention as from the statement of objects and reasons of Central Reserve Police Act, 1949, we hold Central Reserve Force comes within the category of other Armed Forces of the Union. Under 1955 Act Police Force of Assam can exercise powers. Members of the Police Force of other States can also exercise powers under the said notification, if they are properly empowered under the Police Act of 1888. Central Reserve Police cannot be deployed in the disturbed areas of the State under 1955 Act. The reason why CRPF cannot be deployed is set out at page 536 in para 88 of AIR 1983 Delhi 513 showing "the Assam Legislature legislating for Assam Rifles and the words which in Sections 4 and 5 of the Assam Act we have held to be beyond the legislative competence of the Assam Legislature" and accordingly the words have been deleted.
63. We also see in the two notifications there is no period specified for the notification to remain extant.
64. From what has been stated above, we direct as follows:
(i) The notification dated November 27, 1990 issued under the Act 1958 and the notification dated December 7, 1990 issued under 1955 Act shall apply only in respect of the Districts of Dibrugarh, Tinsukia, Sib-sagar, Jorhat, Nagaon, Dhemaji, Lakhimpur, Sonitpur, Darrang, Nalbari and Barpeta and also the city of Guwahati and shall not apply in the districts of Golaghat, Morigaon, Dhubri, Kokrajhar, Bongaigaon, Goalpara, Kamrup (except the city of Guwahati), Karbi Anglong, North Cachar Hills, Cachar, Karimganj and Hailakandi.
(ii) We direct the Central Government under 1958 Act and the State Government under 1955 Act to review every calendar month whether the two notifications are necessary to be continued and shall inform the general public by appropriate method the result of such review. The result of the first review be made known on or before April 20, 1991.
(iii) Under the provisions of the Act 1958 the legal points decided by this Court in Nungshi Tombi Devi v. Rishang Keishang, (1982) 1 Gauhati LR 756 : (1983 Cri LJ 574) and The Civil Liberties and Human Rights Organisations (CLAHRO) v. P. K. Kukrety, (1988) 2 Gauhati LR 137 be made known to Commissioned Officers, non-Commissioned Officers, Warrant Officers and Havildars as in the course of four months the above officers were acting in ignorance of law and that gave rise to numerous complaints in Habeas Corpus and other petitions before this Court. The quality of day to day life of innocent persons was altered. We have witnessed the effects on persons as to how it affected to their detriment.
We direct the Central Government and the Government of Assam, within a month to issue instructions to the above officers:
(a) any person arrested by the armed forces or other armed forces of the Union shall be handed over to the nearest police station with least possible delay and be produced before the nearest Magistrate within 24 hours from the time of arrest.
(b) A person who either has committed a cognizable (offence) or against whom reasonable suspicion exists such persons alone are to be arrested, innocent persons are not to be arrested and later to give a clean chit to them as is being 'white'.
(iv) The imposition of Central Rule under Article 356 of the Constitution, the relief sought for in the four petitions is infructuous.
65. The writ petitions are partly allowed as indicated above. No costs.
S.N. Phukan, J.
66. I agree.