JUDGEMENTS Issue-01 July to September 2010 Index Page
Full version of the report

AFSPA cannot block investigation

On 31 August 2010, the Guwahati High Court delivered its judgment to various petitions [WP(C) No.5817/ 2004; WP (C) No.6187/2004 Writ Appeal No.560/2005 and Writ Appeal No.561/2005] challenging the legality or otherwise of the constitution of the Commission of Inquiry into the rape and murder of Manorama Devi following arrest from her residence at Bamon Kampu Mayai leikai in the wee hours of 11.07.2004 by the Assam Rifles.

In the wake of the unprecedented public outcry, the State government in its notice dated 12th July 2004 ordered a Commission of Inquiry to be presided over by Shri C. Upendra Singh, (Retd.) District and Session Judge, Manipur. The  terms of reference of the Commission were as follows:-
a)    to inquire into the facts and circumstances leading to the death of KM, Th. Monorama Devi on 11.07.2004;
b)    to identify responsibilities on the person/persons responsible for the death of Km. Th, Monorama Devi;
c)     to find out any matters incident al thereto;
d)    to recommend measures for preventing the recurrence of such incidents

As the High Court noted “The scope of the probe by the Commission principally was thus to investigate the facts and circumstances leading to the death of Km. Th. Monorama Devi and to identify the responsibilities of the person/persons involved in the incident. This assumes significance in view of the persistent plea of the State Government that the purpose of the Commission was only to ascertain the facts leading to the death of Km. Th. Monorama Devi.”

The Court further held that Section 2 (a) of the Act, 1952, defines appropriate Government to mean 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, List -II or List-III in the Seventh Schedule to the Constitution of India and the State Government into any matter relatable to any of the entries enumerated in List-II or List-III. The State Government is therefore endowed with the power only if the inquiry is into any matter relatable to any of the entries in List-II or List- III. In other words, it would be impermissible for the State Government to appoint a Commission for making inquiry into any matter relatable to any of the entries enumerated In List-I. The entries in the legislature lists relevant for the present debate have been referred to hereinabove. There is no dissension at the bar that the analogy of the doctrine of “pith and substance” invocable in the inter play of such entries in the list, is applicable to identify the “appropriate Government” under the Act, 1952. A little dilation on this proposition qua the authorities cited is warranted at this juncture.

With specific reference to the AFSPA, the High Court noted:

“41. In course of an exhaustive and dialectical analysis of the provisions of the Act, 1958, the vires whereof had been assailed, the Apex Court in Naga People’s Movement of Human Rights Vs. Union of India (1998) 2 SCC 109, had ruled that though Entry -1 of the State List qualified the State Legislature to legislate on issues with respect to maintenance of public order, the field encompassing the use of armed forces in the aid of Civil Power had been carved out therefrom to be entrusted exclusively to the Parliament. Their Lordship propounded that the expression “in aid of the civil power” in Entry-I of the State List and Entry 2-A of the Union List imply that the deployment of the armed forces of tile Union would be for the purpose of enabling the civil power in the State to deal with the situation affecting maintenance of public order necessitating the detailment. Elaborating that the word “aid” postulates the continued existence of the authority to be aided, their Lordships enunciated that it signified that even after the deployment of the armed forces, the civil power would continue to function. Their Lordships held that tile Act, 1958 was not a law for maintenance of public order under Entry-1 of the State List.”

42. It was authoritatively stated that the power to make a law providing for deployment of the armed forces of the Union in aid of civil power in the State did not comprehend a prerogative to enact a legislation so as to enable the armed forces of the Union to supplant or act as a substitute of the civil power in the State. Their Lordships concluded that a conjoint reading of Entry-2-A of the Union List and Entry-l of the State List would be that in the event of deployment of the armed forces of the Union in the aid of the civil power in a State, it would operate in the State concerned in cooperation with the civil administration so that the situation which had necessitated the deployment is effectively dealt with and normalcy is restored.

Their Lordships also detailed the items of “Do’s and Don’ts” issued by the Army Headquarters and to be adhered to by the armed forces providing aid to the civil authority. As would be apparent therefrom the same required in emphatic terms an express coordination between the armed forces and the local civil administration before and during any operation by the former under the enactment. In conclusion their Lordships reiterated that the expression “in aid of civil power” in Entry-2A of List-I and Entry-1of List-II signified that the deployment of the armed forces would be for the purpose of enabling the civil power in the State to deal with the situation affecting maintenance of public order necessitating the detailment and that the word “aid” postulates continued existence of the authority to be aided. While reaffirming that the statute did not contemplate effacement of the civil power of the State by the armed forces of the Union, the Apex Court emphasised upon the use of minimal force for effective action thereunder and delivery of the person arrested to the officer In-charge of the nearest police station with the least possible delay so as to facilitate his production before the nearest Magistrate within 24 hours excluding the time taken for the journey from the place of arrest to the Court. Directions were also issued to strictly follow the instructions contained in the list of “Do’s and Don’t” issued by the army authorities and for suitable amendment to bring them in alignment with the guidelines contained in the Judgment.”

The Guwahati High Court relied up on two previous judgments. 

First, with regard to the appointment of commission by the State of Manipur under the Act, 1952, amongst others to ascertain whether the army had picked up Shri Y. Sanamacha Singh from his house in the mid night of February 12, 1993, was assailed in Union of India & Ors, Vs. State of Manipur & Ors. (Supra), on the ground that it was beyond its competence having regard to the Entry-2 and 2-A of List-I and Entry-l of List-II of the Seventh Schedule to the Constitution of India. It was contended that the subject matter of the inquiry was located in Entry-2 and 2-A of List-I and that the Central Government was the only appropriate authority to constitute the Commission of Inquiry.

On a scrutiny of the terms of the reference, the Guwahati High Court had concluded that the State Government did not intend the Commission to make an inquiry about the powers and functions of the members of the forces of the Union or other jurisdictional privileges and therefore, held that the decision impugned fell within the purview of public order as enumerated in Entry-l of List -II of the Seventh Schedule to the Constitution of India. It was held, having regard to the public importance generated by the disappearance of Shri Sanamacha Singh and the resultant deterioration in the law and order of the State that the decision of the State Government to constitute the Commission did not suffer from any illegality or error.

Second, following an incident of firing on a crowd in the West Garo Hill District of Meghalaya, a one man Inquiry Commission was constituted by the State Government to report on the causes and nature of the disturbances and the circumstances leading to such armed intervention. In the writ proceeding Initiated by the Border Security Forces challenging the competence of the State Government to appoint such a Commission, the pleadings disclosed that the firing was resorted to not in the invitation of the civil authorities and was on the individual accord of the officer concerned. The challenge as in the instant appeal was founded on Entry -2 and 2-A of List-I of Entry-l of List-II in the Seventh Schedule to the Constitution of India.

The Guwahati High Court noticing, amongst others, that the Boarder Security forces had not at the relevant time, been deployed in aid of civil power or at the invitation of the civil authorities, recorded the failure on the part of the writ petitioners to cite the law emasculating the State to appoint a Commission as done. This Court rejected the plea of harassment and humiliation at the hands of the state authorities and triviallzation of the morale and confidence of the members thereof as an argument in despair.
The Guwahati High Court held that:

“52. The deployment of the Assam Rifles in the State of Manipur thus obviously did not spell excision of the civil power of the State administration for all practical purposes. As a corollary, the State Government not only retained its dominion and authority to attend to the immediate demands of public order emerging within its territory limits, but was essentially obliged to respond thereto under the scheme of constitutional Governance.

53. The subsisting disturbed and volatile existence of its territories or a part thereof warranting declaration of disturbed area(s) necessitating the deployment of armed forces in aid of civil power, ipso facto, cannot and ought not denote denudation of the power of the concerned State Government to envision and adopt initiatives to effectively quell a surfacing public order if imminent on the anvil. The declaration of a disturbed area on a conscious evaluation of the sustained state of affairs in the locality concerned therefore cannot be construed to preclude a State Government to visualize and enforce steps to successfully thwart a perceptible law and order situation or meet the exigencies of public order writ large on the progression of contemporaneous events. Such a tumult in the public conscience and temperament as a cause of the entropy snowballing, gradually and tangibly to a law and order situation threatening to dislodge the normal rhythm of societal existence, even if directly or remotely relatable to any action of the deployed armed forces could not have been ignored by the civil administration to shy away from adopting essential measures to restore normalcy and confidence of the teeming masses, which indeed is the sacrosanct commitment under the national charter.

54. The uncontroverted pleaded averments of the State of Manipur is that the incident of the death of Th. Km. Manorama Devi spurred immediate large scale protests all over the State demanding action against the persons responsible therefore. The State Government on an assessment of the situation that was increasingly getting volatile though mindful of the authority of the Assam Rifles under the Act in executing its operation within the bounds of its duties as well as of its constitutional obligation to protect the rights and liberty of the citizens as well as the sentiment of the public at large genuinely regarded it necessary to be apprised of the facts leading to the episode to decide its future course of action in accordance with law.

The State in its counter has clarified that as the livid outrages of the various cross-sections of the society suggested large scale disturbance with minatory reverberations, it was considered unavoidable to ascertain through a fact finding inquiry the actual state of affairs pertaining to the incident without, however, compromising with the security of the State or adversely affecting the morale of the Assam Rifles. The State Government clarified that in doing so it sought to maintain a balance between the public demand and the security imperatives and that by the constitution of the Commission, it did not intend to inquire into the powers and functions of the Assam Rifles.

55. Reading between the lines, the Impugned notification dated 12.07.2004 does not portray any disaccord with the above assertions. There is no denial of the fact that the incident had raked up seething public Indignation triggering a tempestuous upheaval in the entire State with intimidating consequences threatening to throw out of gear the normal tempo of human life. Though political mileage has been alleged by the Union of India and the Assam Rifles to be the impelling factor for the appointment of the Commission, no convincing material is available in endorsement thereof. There is nothing to indicate either that the State Government was visibly in error in evaluating the attendant hostile situation necessitating such a step or had misdirected itself on irrelevant and co-lateral considerations to permit itself to be directed to do so. Though, it is considered inessential having regard to the issues seeking adjudication to conclusively comment on the authenticity or otherwise of the charge of alleged rape and murder of Th. Km. Manorama Devi, the same if established can by no means be within the scope of the deployment of the armed forces in the State of Manipur on any count.  It is in this perspective that the arguments based on the disclosures in the Commission have not been attended to for deductions therefrom.

56. Be that as may, having regard to the above determination touching upon the various aspects bearing on the legality and/or validity of the appointment of Commission by the State of Manipur, we are of the unhesitant opinion that it had been within its prerogative authority and dominion under the Act, 1952 and that therefore, the impugned notification dated 12.07.2004 is sustainable in law and on facts. Having regard to the reasons cited hereinabove and the satisfaction of the State Government calling for the constitution of the Commission, this Court in the exercise of its power of judicial review and in absence of any unimpeachable and overwhelming evidence to the contrary, is disinclined to adjudge it to be vitiated in law or in defiance of logic or motivated by extraneous considerations warranting interference therewith. The omission on the part of the State Government in the facts and circumstances of the case to request the Central Government to appoint a Commission for sanction for prosecution of the erring personnel of the Assam Rifles by itself does not invalidate the impugned decision. Noticeably, the State plea that the Assam Rifles don’t share any information with its Government has remained unrefuted. In the backdrop of the constitutional accountability of the State Government to administer its affairs inconformity with the rule of law signifying maintenance of public order, peace, amity and tranquility within its frontiers and the limited purpose for which the Commission had been constituted as is demonstrable by the materials on record, the impugned notification dated 12.07.2004 is unassailable. The State’s plea that the inquiry entrusted to the Commission pertains to issue of immense public Importance therefore commends tor acceptance.

57. Besides, as the reports of the police investigation into the aforementioned case reveal, the progress thereof remains stalled for the non-cooperation of the Assam Rifles. Apparently, therefore, even after the lapse of six years the police investigation in the criminal case is not complete. The latest report produced in course of the arguments disclose that meanwhile the 17th Assam Rifles has moved out from the State of Manipur, which as well has resulted in the letup in the investigation.

58. The proceedings of the Court of Inquiry said to have been initiated by the Assam Rifles in the above factual premise could not have posed an insupperable bar for the appointment of the Commission. Noticeably, as permitted by this Court, the Commission meanwhile has completed its probe and has submitted its report. In any view of the matter, the proceeding before the Commission being not one contemplated under section 6 of the Act, 1958, no previous sanction of the Central Government was necessary as well. The impugned decision of the State Government to constitute the Commission with the terms of reference as outlined in the impugned memorandum dated 12.07.2004 is thus not subversive of the schematic dichotomy approved by the constitutional framework of legislative powers.

59. In the wake of the above determinations made hereinabove, we are in respectful disagreement with the view expressed in the impugned judgment and order qua the permissibility of the Government of Manipur to constitute the Commission vide the notification dated 12.07.2004. Consequentially the resultant considerations and the premise of the operative directions cannot be sustained. The impugned Judgment and order is thus interfered with. The impugned notification dated 12.07.2004 is hereby adjudged legal and valid. The State of Manipur is left at liberty, if so advised, to deal with the report submitted by the Commission strictly in accordance with the provisions of the Act, 1952 and other relevant provisions of law pertaining thereto.”

The question remains whether the State government of Manipur will now act on the Justice Upendra Commission report that has already been submitted.

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