Indrajit Barua Petitioner v. The State Of Assam & Another S

Prakash Narain, C.J:— What is most precious to any man is his life. Next to that his personal liberty. That is why life and liberty are two basic human rights which are ensured to every man, woman and child in any civilised society. This is recognised by our Constitution and is enshrined as a fundamental right in Article 21. Indeed on such a high pedestal have these two rights been placed by the Constitution that Article 21 is couched in a language which is by way of a direction or injunction to all and sundry, including the State, that no person shall be deprived of his life or personal liberty except according to the procedure established by law.

2. In any organised society it is a basic postulate that the rule of law is supreme. Therefore, it is only procedure established by law which could entitle the taking away of a person's life or personal liberty. The power to deprive a man of his basic human right of either life or personal liberty is necessitated because of the imperative of an organised society, the need of the society to keep it duly organised, free, of crime or offences against the society or persons constituting the society. Indeed, it can hardly be disputed that such a need or power must take precedence over the individual's right to enforce his rights qua life and personal liberty. This social need, however, can only be met in one way and that is that the State representing the Society, arms itself with the power to deprive a person of life and liberty by enacting a valid law.

3. The procedure established by law, however, cannot be arbitrary. This has been recognised by our Constitution by enacting provisions like Article 14, Article 19 and Article 21. It is a postulate of civilised society that all State action whether it be executive action or legislative action or even judicial action must stand the test of being just, reasonable and fair. In other words, it must not be oppressive, capricious, whimsical, unjust or unfair. In short, it should not be arbitrary. These are the fundamentals of any civilised society and on which our secular, democratic republic is founded. Thirty three years ago, Mukherjee, J. (as he then was) in Gopalan's case adverting to this very aspect had to say this: —

“The question, therefore, arises in each case of adjusting the conflicting interests of the individual and of the society. In some cases, restrictions have to be placed upon free exercise of individual rights to safeguard the interests of the society; on the other hand, social control which exists for public good has got to be restrained lest it should be misused to the detriment of individual rights and liberties. Ordinarily, every man has the liberty to order his life as he pleases, to stay what he will, to go where he will, to follow any trade, occupation or calling at his pleasure and to do any other thing which he can lawfully do without let or hindrance by any other person. On the other hand for the very protection of these liberties the society must arm itself with certain powers. No man's liberty would be worth its name if it can be violated with impunity by any wrongdoor and if his property or possessions could be prayed upon by a thief or a marauder. The society, therefore, has got to exercise certain powers for the protection of these liberties and to arrest, search, imprison and punish those who break the law. If these powers are properly exercised, they themselves are the safeguards of freedom, but they can certainly be abused. The police may arrest any man and throw him into prison without assigning any reasons; they may search his belongings on the slightest pretext; he may be subjected to a sham trial and even punished for crimes unknown to law. What the Constitution, therefore, attempts to do in declaring the rights of the people is to strike a balance between individual liberty and social control.”

Likewise S.R Dass, J. (as he then was) opined:—

“Personal liberties may be compendiously summed up as the right to do as one pleases within the law. I say within the law because liberty is not unbridled licence. It is what Edmund Burke called ‘regulated freedom’. . . . . . . . Therefore, putting restraint on the freedom of wrong doing of one person is really securing the liberty of the intended victims. To curb the freedom of the saboteur of surreptitiously removing the fish plates from the Railways lines is to ensure the safety and liberty of movement of the numerous innocent and unsuspecting passengers. Therefore, restraints on liberty should be judged not only subjectively as applied to a few individuals who come within their operations but also objectively as securing the liberty of a far greater number of individuals social interest in individual liberty may well have to be subordinated to other greater social interests. If a law ensures and protects the greater social interests then such law will be a wholesome and beneficent law although it may infringe the liberty of some individuals, for, it will ensure for the greater liberty of the rest of the members of the society. At the same time our liberty has also to be guarded against executive, legislative as well as judicial usurpation of powers and prerogatives.”

4. The petitioners before us contend that certain legislative actions of the State of Assam and the Parliament and consequent administrative actions of the Governor of the State of Assam, if tested on the touchstone of the above postulates would be found to be ultra vires. The two enactments challenged before us in C.W 832 and 833 of 1980 are the Assam Disturbed Areas Act, XIX of 1955 enacted by the Assam legislature and the Armed Forces (Assam and Manipur) Special Powers Act, 28 of 1958 read with the Armed Forces (Assam and Manipur) Special Powers (Amendment) Act, 1972 (No. 7 of 1972) enacted by the Parliament. The two orders of the Governor of Assam challenged are Notification No. PLR-20/80/19 dated April 5, 1980 issued under section 3 of the Assam Disturbed Areas Act, 1955 and Notification No. PLA-20/80/20 dated 5th April, 1980 issued by the Governor of Assam under section 3 of the Armed Forces (Special Powers) Act, 1958 as amended. A challenge is also made to an order issued under section 144 Cr. P.C on 28th March, 1980 by the District Magistrate (Kamrup) Gauhati.

5. In C.W 834/80 the challenge is to a notification dated December 14, 1979 publishing a proclamation and order made by the President under Article 356 of the Constitution of India on 12th December, 1979. Another order dated 12th December 1979 made by the President of India conferring on the Governor of the State of Assam certain powers and Assam Ordinance No. 3 of 1980 known as the Assam Preventive Detention Ordinance 1980 promulgated by a notification dated April 18, 1980 legislating for preventive detention in certain conditions and on certain postulates are also challenged. We may mention that the said Ordinance has been superseded by the Assam Preventive Detention Act, 5 of 1980 which repeals the aforesaid Ordinance. act 5 of 1980 has not been challenged before us.

6. L.P.A 108/80 is directed against an interim order passed by a learned single Judge in C.W No. 832 of 1980.

7. Before we proceed further it would be apt to notice how these petitions and appeal are being heard by us.

8. Inderjeet Barua field a petition under Article 226 of the Constitution of India in the Gauhati High Court which was registered as Civil Rule No. 182/80. Rule nisi was issued by that High Court on April 7, 1980. An ex-parte stay of the operation of the aforesaid two notifications of the Governor of the State of Assam issued on April 5, 1980 was ordered. A similar petition under Article 226 of the Constitution of India was filed by Hem Kant Sharma in the Gauhati High Court which was registered as Civil Rule 192/80. Rule nisi was issued and ex-parte stay orders with regard to the aforesaid two notifications were passed on 11th April, 1980.

9. Jatin Goswami filed a petition under Article 226 of the Constitution of India in the Gauhati High Court which was registered as Civil Rule No. 203/80. He had challenged, inter alia, as noticed earlier, the proclamation and orders of the President dated December 12, 1979 and Ordinance No. 3 of 1980. Rule nisi was issued. The operation of the impugned ordinance was stayed ex-parte.

10. The application for interim relief in Civil Rule No. 182/80 came up for healing before a learned single Judge of the Gauhati High Court when opposition was filed by the respondents. This was consequent to orders passed by the Supreme Court of India in Special Leave Petition (Civil) No. 4377 of 1980. The original ex-parte stay was somewhat modified but the operation of section 4 of the Assam Disturbed Areas Act. 1955 and of section 4 (a) of the Armed Forces (Special Powers) Act, 1958 was stayed. With regard to the two impugned notifications issued by the Governor of the State of Assam it was ordered that the two impugned notifications will take effect but no power shall be exercised under the provisions of section 4 of the Assam Disturbed Areas Act and Section 4 (a) of the Armed Forces (Special Powers) Act, 1958; exercise of which powers was stayed. It was observed that adequate precaution shall be taken to prevent abuse of the provisions of clauses (c) and (d) of section 4 of the Armed Forces (Special Powers) Act, 1958. The writ petition was ordered to be heard and disposed of expeditiously. Against this order a writ appeal was filed by Union of India and the State of Assam.

11. In Jatin Goswami's case the application for interim relief came up for hearing after notice on April 23, 1980. Inasmuch as the rule was ordered to be heard on May 2, 1980, the learned single Judge of the Gauhati High Court did not think it necessary to amend the earlier ex-parte stay orders. Thereafter the hearing was adjourned from time to time and the final hearing of the case could not be taken up.

12. The Union of India and the State of Assam had filed special leave petition (Civil No. 4377/80) in the Supreme Court of India, but the Supreme Court hard not varied the ex-parte stay order given by the High Court. It had only directed that the stay application be disposed of on April 18, 1980 after hearing both parties. The High Court was further directed to treat the material placed before the Supreme Court in the Special Leave Petition as material placed before it and also give liberty to the parties to produce such other material as they desire to produce. What happened thereafter has already been noticed by us earlier.

13. After the Assam High Court had passed orders in the application for interim relief, as noticed by us earlier, transfer petitions were moved by the Union of India and the State of Assam in the Supreme Court in regard to above noted four matters and some other matters. Accepting the petitions various cases including the above four with which we are presently concerned were transferred to this court. In this Court Civil Rule 182/80 has been registered as C.W.P 832/80, Civil Rule 190/80 has been registered as C.W.P 833/80, Civil Rule 203/80 has been registered as C.W.P 834/80 and the Writ Appeal has been registered as L.P.A 108/80.

14. Although the above matters were transferred to this court and were taken up by us on July 16, 1980 hearing of the matters was adjourned from time to time on joint request of counsel for the parties. Finally the cases have been heard with consent of learned counsel for the parties in the last week and we now proceed to judgment.

15. We may straight away dispose of C.W 834/80. The challenge to The Assam Preventive Detention Ordinance 1980 which has been replaced by the Assam Preventive Detention Act, 1980 alone is pressed. Section 17 of the Act repeals the Ordinance. The Act came into forces on April 18, 1980. It has not been challenged before us. All actions, deeds, acts and things taken or done under provisions of the Ordinance are deemed to have been taken or done under the corresponding provision of the Act. Inasmuch as the vires of the Act is not challenged, though if the petitioner was so inclined he could have challenged the same by even moving an application for amendment of the petition, it will be an exercise in futility for us now to deal with the vires of the Ordinance. The petition is, therefore liable to be dismissed.

16. As far as L.P.A 108/80 is concerned, the contentions raised therein are of academic interest. We are disposing of the writ petition itself on merit and, therefore, the decision in the writ petition would govern the decision to be arrived at in the L.P.A

17. We now proceed to take up the two remaining petitions, namely, C.W 832 and C.W 833 of 1980.

18. The Assam Disturbed Areas Act, 1955 (hereinafter referred to as the Assam Act) was passed by the Legislature of Assam. It received the assent of the Governor of Assam on December 14, 1955. The long title of the Assam Act is, “An act to make better provision for the suppression of disorder and for the restoration and maintenance of public order in disturbed areas in Assam.” The Preamble of the Assam Act reads: “Whereas it is necessary to make better provisions for the suppression of disorder and for the restoration and maintenance of public order in the disturbed area in Assam”. Section 2 of the Assam Act defines “Disturbed area” to mean an area which is for the time being declared by notification under Section 3 to be a disturbed area. Section 3 of the Assam Act lays down that the State Government may by notification in the official Gazette declare that the whole or any part of any district of Assam as may be specified in the notification to be a disturbed area. Sections 4 and 5 of this Act read as under: —

“Section 4: Power to fire upon persons contravening certain orders:— Any Magistrate or Police Officer not below the rank of Sub-Inspector or Havildar in case of the Armed Branch of the Police or any officer of the Assam Rifles not below the rank of Havildar, may, if in his opinion, it is necessary so to do for the maintenance of public order, after giving such warning, if any, as he may consider necessary, fire upon, or otherwise use force even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in a disturbed area, prohibiting the assembly of five or more persons or the carrying of weapons or things capable of being used as weapons or fire-arms, ammunition and explosive substances.

Section 5: Powers to destroy arms dump, fortified positions, etc. Any Magistrate or Police Officer not below the rank of Sub-Inspector or any officer of the Assam Rifles not below the rank of Jamadar may, if in his opinion, it is necessary so to do destroy any arms dump, prepared or fortified positions or shelters from which armed attacks are made or attempted, structures used as training camps for armed volunteers or utilised as hideouts or shelters by armed gangs or absconders wanted for offences in connection with the disturbances.”

19. Section 6 lays down that no suit, prosecution or order legal proceedings shall be instituted against any person in respect of anything done or purported to have been done in exercise of the powers conferred by Sections 4 and 5 except with the previous sanction of the State Government. We may notice that the Assam Act repeals the Assam Disturbed Areas Ordinance, V of 1955. We may further notice that the Assam Act has never been placed before the President of India for his assent and none has been given.

20. The Armed Forces (Assam and Manipur) Special Powers Act, 1958 (hereinafter referred to as the Central Act) was enacted by the Parliament in September, 1958. It was amended by the Armed Forces (Assam and Manipur) Special Powers (Amendment) Act, 1972 which was enacted in April, 1972. This Act will hereafter be referred to by us as the Central Amending Act.

21. The long title of the Central Act reads, “An act to enable certain special powers to be conferred upon members of the armed forces in disturbed areas in the State of Assam and the Union Territory of Manipur”. By the Central Amending Act the words “in the State of Assam and the Union Territory of Manipur” have been substituted by the words, “in the States of Assam, Manipur, Meghalaya, Nagaland and Tripura and the Union Territories of Arunachal Pradesh and Mizoram” in the long title of the Central Act. Section 2(a) of the Central Act reads as under:

“Sec. 2(a): ‘armed forces’ means the military forces and the air forces operating as land forces, and include any other armed forces of the Union so operating”

Section 2(b) reads as under:

“Sec. 2(b): ‘disturbed area’ means an area which is for the time being declared by notification under Section 3 to be a disturbed area”.

Section 3 of the Central Act as amended by the Central Amending Act lays down that the Governor of the States to which the Central Act is applicable or the Chief Commissioner or Administrator of the Union Territories to which the Central Act is applicable may, if they are of the opinion, that the whole or any part of their respective State or Union Territory, as the case may be, “is in such a disturbed or dangerous condition that the use of armed force in the aid of civil power is necessary, he may, by notification in the Official Gazette, declare the whole or any part of the State or Union Territory to be a disturbed area.”

22. Section 4 of the Central Act reads as under:

4. Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area —

(a) If he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substance.

(b) if he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as a training camp for armed volunteers or utilised as a hide-out by armed gangs or absconders wanted for any offence;

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

(d) Entry and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises, and may for that purpose use such force as may be necessary.”

23. Section 5 of the Central Act lays down that any person arrested and taken into custody under the Act shall be made over to the officer incharge of the nearest police station with the least possible delay together with the report of the circumstances occasioning the arrest. Section 6 provides that no prosecution, suit or other legal proceedings shall be instituted against any person in respect of anything done or purported to have been done in exercise of the powers conferred by the Act except with the previous sanction of the Central Government. Section 7 of the Central Act repeals the Armed Forces (Assam and Manipur) Special Powers Ordinance, 1958.

24. On April 5, 1980 the Governor of Assam issued two notifications bearing Nos. PLA 20/80/19 and No. PLA 20/80/20. The former was issued under Section 3 of the Assam Act while the latter was issued under Section 3 of the Central Act. By the two notifications the whole of the State of Assam was declared to be “disturbed area” except North Cachar Hills district under the respective Acts. The North Cachar Hills District had already been notified to be “disturbed area” by earlier notification under the two Acts issued on 27th February 1980. The effect of the issue of the two notifications was that the relevant provisions of the Assam Act and the Central Act became applicable and powers could be exercised by the persons and authorities mentioned in the said Acts to the extent conferred by the two Acts. The petitioners challenge not only the vires of the two Acts as being violative of Articles 14, 19 and 21 of the Constitution but also the legislative competence of the Assam legislature and the Parliament in respect of the respective legislation enacted by the two legislatures. Their contention in regard to the impugned notifications' issued by the Governor are that the same have been issued without application of mind, without any proper material being before the Governor and in a manner which can only regarded as not being a just, fair and reasonable exercise of power, even if power is assumed to be there in the Governor to issue the impugned declarations. It is further submitted that inasmuch as the term “disturbed area” has not been defined, the act of declaring an area to be “disturbed area” is without any basis and irrational. In other words, it is whimsical and fanciful amounting to arbitrariness.

25. The contention on behalf of the Central Government and the State of Assam, on the other hand, is that the challenge as made is misconceived. It is the respondents case that the respective legislatures had the power to enact the laws and the same are not liable to be struck down either for want of legislative competence or being in alleged violation of Articles 14, 19 and 21 of the Constitution. The exercise of power by the Governor is defended by inviting our attention to the circumstances necessitating the issue of the two notifications on April 5, 1980. With regard to the scope of the term “disturbed area” it is submitted that sufficient guideline is to be found in the long titles and preambles and sections of the two enactments as to what is “disturbed area”.

26. Mr. Harish Salve, learned counsel for the petitioner, has put his case thus:

Article 21 of the Constitution guarantees that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Further even the procedure prescribed for deprivation of life or personal liberty cannot be arbitrary, excessive, oppressive or unjust. Reliance has been placed on Smt. Meneka Gandhi v. Union of India and another, AIR 1978 S.C 597 (1).

27. Learned counsel proceeded to urge that any law or procedure which leads to inhumane or degrading treatment, as according to him is permitted or contemplated by Section 4 of the Assam Act and Section 4 of the Central Act, cannot stand the test of reasonableness and absence of arbitrariness and as such will not constitute procedure established by law within the meaning of Article 21 of the Constitution. He relied on Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others. AIR 1981 SC 746 (2).

28. On the constitutional validity of the two Acts Mr. Salve's principal attack has been to invite our attention to the width of the power conferred. He contended that in relation to rights of personal liberty, a provision which confers wide powers which are capable of abuse have been held to be violative of Article 21 of the Constitution in A.K Roy v. Union of India, AIR 1982 SC 710(3). Therefore, in matter of taking away life the width of power as conferred would certainly make the provision of the impugned laws violative of Article 21 of the Constitution.

29. It was further submitted by the learned counsel that in the context of the width of the power conferred by the impugned enactments, that it would be relevant to examine the wide ranging discretionary powers given to low ranking officials with out there being adequate safeguards for preventing misuse of such powers. Consequently a statute which confers such powers would be liable to be struck down as it will fail to stand the test of absence of arbitrariness as contemplated by Article 14 of the Constitution. The counsel added that the rank of repository of power has to be judged with reference to the likelihood of his exercising due fairness and caution in exercise of power. To support this contention reliance was placed on Gurbachan Singh v. State of Bombay and another, AIR 1952 SC 221 (4), and M/s. Pannalal Binjraj and others v. Union of India and others AIR 1957 SC 397 (5).

30. The width of the power according to Mr. Salve had also to be examined in another way. Section 3 of the Assam Act or the similar provision in the Central Act read with the Preamble and the long title of the Acts could be determinative of the areas to which the provisions of the Act were to apply. In that view of the matter the Acts could be extended to all areas where there is breakdown or likelihood of breakdown of public order. Once an area has been declared as a disturbed area then more or less every act which may otherwise constitute merely a break down of law and order can fairly be construed to constitute a breach of public order as there is no qualitative difference between actions which amount to a breach of law and order and which amount to a breach of public order. Therefore, it was submitted, the wide powers conferred by Section 4 of the Assam Act or the similar provisions in the Central Act to fire upon or to use force even to the extent of causing death on Sub Inspectors or District Magistrates is bad as the District Magistrate and Sub Inspectors and Magistrates have more controlled powers for dealing with breaches of law and order. Reliance was placed on the observations in Wasi Uddin Ahmed v. The District Magistrate, Aligarh, UP and others, AIR 1981 SC 2166 (6).

31. Amplifying the above submissions the learned counsel submitted that the situations in which Section 4 of the Assam Act or similar provision of the Central Act are attracted, are only two, namely, where any person contravenes any law or order for the time being in force, (a) prohibiting the assembly of five or more persons or (b) carrying of weapons or things capable of being used as weapons of fire-arms ammunition explosive substances. As far as the situation at (a) is concerned there is ample prevision with regard to it in the Code of Criminal Procedure. Sections 129 and 131 of the Code of Criminal Procedure give power to order dispersal of any unlawful assembly or any assembly of five or more persons likely to cause disturbance of public peace. Section 144 of the Criminal Procedure Code, confers power to direct any person or group of persons, persons residing in a particular place or the public generally who visit a particular place, to abstain from doing any act where it is necessary to do so to prevent, inter-alia, disturbance of public tranquility. These powers are, however, exercisable with safeguards. These powers though providing far use of force, it is also provided that the force used has to be minimum force necessary for discharging or dispersing the assembly and arresting or detaining persons constituting a prohibited assembly. Section 4 of the Assam Act and the similar provision in the Central Act, however, confers blanket power to fire upon or use force even to the causing of death in identical situations. Therefore, the width of the power conferred is arbitrary and does not stand the test of being just, fair and reasonable. The powers conferred actually amount to conferment of powers which can be called excessive, oppressive and capable of wanton abuse. To stress the point the learned counsel contended that it would be strange logic that whereas after a trial and conviction for such offences as murder causing breach of public order, death penalty could be awarded in the arrest of rare cases but under the impugned Acts death could be caused by a low ranking official on mere apprehension and suspicion on the basis of his subjective satisfaction. There being no safeguard to possible abuse in exercise of power of Section 4 of the Assam Act and the similar provision in the Central Act are both liable to be struck down. Reference was made to the decision of the Supreme Court in A.K Roy v. Union of India, AIR 1982 SC 710, where a similar power capable of wanton abuse under Section 3 (3) of the National Security Act to preventively detain in similar circumstances was struck down. The argument proceeded that if for personal liberty such possibility of wanton abuse makes a prevision bad surely in the case of life, a more sacred right, giving of such power would be bad.

32. With regard to situation (b) above, viz., carrying of arms etc., it was urged that Section 20 of the Arms Act confers adequate powers to arrest and Section 22 of the Arms Act gives power for search and seizure of arms and ammunition likely to be used to disturb public peace and safety but exercise of these powers is hemmed in with safeguards. No such safeguard are available in the provisions of the impugned statutes. Therefore, the same are liable to be struck down.

33. On the legislative competence of the Assam legislating in enacting the Assam Act, and of the Parliament in enacting the Central Act, Mr. Salve contended that reading entry 2 of list II, which provides for legislation with respect criminal procedure including all matters included in the Code of Criminal Procedure at the commencement of the Constitution and a reading of entry 1 of list II would show the entry 2 of list III is a specific entry and would prevail over entry 1 of list II. Reliance was placed on Maru Ram v. Union of India, AIR 1980 SC 2147 (7). Therefore, the power given in the Assam Act to disperse an assembly of five or more persons which is also given in the Code of Criminal Procedure would be bad as lacking in legislative competence. Entry 1 of List II of the 7th Schedule, as was inforce in 1955 when the Assam Act was enacted read as under:

“public order (but not including the use of naval, military or air force or any other armed force of the Union in aid of the civil power)”.

34. By the 42nd amendment this entry was amended to read:

“Public order (but not including the use of any naval, military or air force or any other armed force of the Union or any other force subject to the control of the Union or of any contingent or unit thereof) in aid of civil power”.

35. Entry 2 of List III of the Seventh Schedule reads as under: —

“Criminal procedure, including all matters included in the Code of Criminal Procedure at the commencement of this Constitution”.

36. Referring to entry 5 of the list I which reads, “arms, fire arms, ammunition and explosives” it was urged that the Arms Act deals with these subjects is a Central legislation. Section 4 of the Assam Act to the extent it confers powers to fire upon or use force against persons carrying weapons, fire arms, ammunition and explosives is in pith and substance a law dealing with arms and explosives and consequently is ultra vires of the legislative powers of the Assam legislature. The same argument was contended to apply to Section 5 of the Assam Act making it ultra vires the Assam legislature. In any case, it was submitted, Sections 4 and 5 of the Assam Act are repugnant to the provisions of law made by Parliament and to that extent would be void. It was also urged that if these provisions are held to be supplementary to the provisions of the Code of Criminal Procedure the argument of legislative competence would apply with double force.

37. Reference was also made by learned counsel for the petitioners to Article 359 of the Constitution to contend that the only situation in which enforcement of Article 21 of the Constitution can be suspended is the situation contemplated by Article 359 under which the President may by order suspend the right to move any court for enforcement of the right conferred by Article 21 of the Constitution during the period when a proclamation of emergency is in force. In no other situation can Article 21 of the Constitution be abrogated. By the impugned legislation, it was urged, Article 21 of the Constitution has virtually been abrogated. Indeed a situation akin to martial law has been brought into existence without any warrant for it.

38. No exception can be taken in principle, to the legal propositions propounded by Mr. Salve in a most able and commendable manner. These propositions, however, have to be applied to a given situation on well accepted and judicial principles. We have, therefore, to examine the arguments on the facts and circumstances of the present cases.

39. Let us first examine what is the scope and content of Article 14, 19 and 21 of the Constitution.

40. The view taken by the majority in A.K Gopalan v. State Of Madras., AIR 1950 SC 27 (8) that Articles 19 and 21, or for that matter the various Articles in Part III of the Constitution, are not complementary to each other but deal with separate and distinct rights has undergone a considerable change by the pronouncement of the judgment of a Constitution Bench of seven Judges in Smt. Menaka Gandhi v. Union of India and another AIR 1978 SC 597 and the full court decision in R.C Copper v. UOI (1970) 3 SCR 530 (9). It has been held that the minority view in Gopalan's case must be regarded as correct and the majority view must be held to have been overruled. Therefore, it is settled law that the fundamental rights conferred by Part III are not all distinct and mutually exclusive rights. Each freedom may have different dimensions and merely because the limits of interference with one freedom are specified, law is not freed from the necessity to meet the challenge of another guaranteed freedom.

41. The interrelation between Article 21 on the one hand and Articles 14 and 19 on the other has to be kept in view to test the validity of the Statute. As was observed by Bhagwati, J. in Menaka Gandhi's case. “Now, if a law depriving a person of ‘personal liberty’ and prescribing procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred Under Article 19 which may be applicable in a given situation ex-hypothesis, it must also be liable to be tested with reference to Article 14.”

42. On the scope of Article 14 of the Constitution in Menaka Gandhi's case it is laid down, “there can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic and, therefore, it must not be subjected to narrow, pedantic or lexographic approach. No attempt should be made to truncate its all embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. We must reiterate here what was pointed out by the majority in B.P Royappa v. State of Tamli Nadu (1974) 2 S.C.R 348: (A.I.R 1975 S.C 555) namely, that “from a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies: one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Article 14”. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence.”

43. The law prescribing a procedure, as postulated by Article 21 of the Constitution, has, therefore, to be tested on the above principle enunciated in the Menaka Gandhi's case, contended the learned counsel for the petitioner. We agree. Indeed, the learned Solicitor General, appearing on behalf of the respondents, stated that he would himself strongly urge that this is the correct approach in law.

44. Now what does Article 21 postulate ? It says that no person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law, according to the content of Article 21 in the light of the law propounded in Menaka Gandhi's case and explained by the Constitution Bench of the Supreme Court in Bachan Singh v. State of Punjab. The learned Chief Justice accepting the exposition in Menaka Gandhi's case observed: —

“In the converse positive form, the expanded Article will read as below:

‘A person may be deprived of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law.’

Thus expanded and read for interpretative purposes, Article 21 clearly brings out the implication, that the Founding Fathers recognised the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law.”

45. What is, therefore, just, fair and reasonable procedure established by reasonable law as opposed to procedure which can be called arbitrary or discriminatory is a question to be answered in the facts and circumstances of a case.

46. Article 19 of the Constitution gives fair indication of how to test it. The power given by Sections 4 and 5 of the Assam Act and the Central Act could be regarded as placing restrictions on the freedoms guaranteed by Article 19(1)(b) and (d). The enforcement of the rights contemplated by Article 19(1)(b) and (d) can, however, be restricted only in the interest of maintaining, inter alia, public order or in the interest of general public as provided by clauses 3 and 5 respectively of Article 19 of the Constitution.

47. There is another way in which restrictions affecting rights guaranteed by Article 21 can be tested. As we noticed earlier, Article 21 is couched in negative language, the positive form of which would be as propounded by Chandrachud, C.J Further the injunction not to deprive a person of his life and liberty except in accordance with fair, just and reasonable procedure established by valid law is primarily addressed to the State. Therefore, if to save hundreds lives one life is put in peril or as Das, J. expounded or B.K Mukherjee, J. put it, if a law ensures and protects the greater social interest than such law will be a wholesome and beneficial law although it may infringe the liberty of some individuals: it will ensure for the liberty of the greater number of the members of the society at the cost of one and a few. In any organised society, claiming to be civilised and governed by the rule of law, social imperatives for the greater good must take precedence over individual rights. If that is the correct understanding of the constitutional provisions we have to test the arguments advanced on behalf of the petitioners from this approach.

48. No one can dispute that the States or Union Territories to which the provisions of the impugned Statutes are made applicable are border States in the North East part of our country. China and Nepal in the North and North West, Burma in the East and Bangladesh (formerly E. Pakistan) in the South have common borders with these territories of India. Assam particularly has been a region not free from difficulties for centuries. To quote from the Encyclopedia Britannica Vol. II:

“Physical Geography — Assam proper comprises the valley of the Brahmaputra as far as the foothills of the Himalayas on the north where lies the frontier with Bhutan occupying the Himalayas to the West. The North East Frontier Agency covers the Himalayas in the northern and north-western part of the State. The valley is roughly 500 ml. from east to west and 50 to 100 ml. wide and is bounded on the south by a succession of hill masses — the Garo, Khasi and Jaintia hills beyond which lies Pakistan, the Barail range on the Manipur border and the Patkai hills on the Burmese border. The agency has a long frontier with Tibet and China. Near the head of the valley a number of rivers unite to form the Brahmaputra (q.v) proper: by far the most important is the Tsangpo (often called Brahmaputra on western maps), which after flowing eastward through Tibet for hundreds of miles turns south through the main Himalayan ranges in great gorges to fall in a series of rapids to the Assam valley where 100 ml. from the sea, it is only 400 ft. above sea level. From there it follows, a sluggish course meandering, dividing and reuniting, frequently many miles wide so that periodic flooding renders much of the Assam valley of little use. The various hill areas round the valley are named after the hill tribes inhabiting them; at the far eastern end the great mountain barrier became known during the early part of World II as “The Hump” over which supplies were flown to western China then resisting the Japanese invasion.”

“From remote antiquity the valley was occupied by a Tibeto-Burman-speaking people. This stock still forms the bulk of the indigenous population.

Indo-Aryan settlement in the valley must have begun before the opening of the Christian era. Three lines of kings are known to have ruled from the 6th to the 12th century. In the 13th century the first Muslim invasions broke up the old kingdom; about 1515 a Koch dynasty carved out lands and now comprise the district of Cooch-Behar (q.v) and lower Assam, and which soon split into an eastern and a western kingdom.

Meanwhile the Burmese Shams, known as Ahoms, who were to give their name to the country and rule it for centuries, had crossed the low ranges at the head of the valley and were consolidating their power in upper Assam. The traditional date of the Ahom invasion according to their chronicles is A.D 1228, but students of Burmese history consider a date in the late 15th or early 16th century more probable (see AHOM). They at once came into conflict with the Kacharis, whose leaders retreated down the south bank of the Brahmaputra.

In 1527 Muslim marauders from Gaur (q.v) invaded the Ahom kingdom for the first time and were defeated. The Ahoms, pressing west against the kacharis, sacked Dimapur, their capital, and forced them into the north Cachar Hills, where they built a new capital at Maibang. Surviving ruins show that the Kacharis at this period had attained a considerably higher state of civilization than their conquerors. Wars with the Muslims occupied much of the 17th century, and in 1662 lower Assam was ceded to the Mughal emperor Aurangzeb. In 1706 the Kacharis were driven out of Maibang and established their last capital at Khaspur in the plains of Cachar. About this time the Ahom king Rudra Singh became an orthodox Hindu, and in the reign of his successor Sib Singh (1714-44) Hinduism became the predominant religion.

The country had frequently been distract by rebellions in which both sides showed appalling brutality, and by 1792 such was the state, of affairs that the king, Gaurinath, sought and received aid from the British in Bengal. This aid was soon withdrawn, however, and in 1816 a claimant to the throne called in the Burmese, who plundered the country and returned the following year. After further disorder and a period of direct British rule (1826-32) Assam was in 1838 incorporated in Bengal (q.v) and remained a part of that province until a separate chief commissionship was set up in 1874. This arrangement continued, with one interval, until 1919, when Assam became a governor's province.

During World War II the Naga Hills especially the area around Kohima, were the scene of bitter fighting between the British 14th army and the Japanese forces which had occupied Burma in 1942. Assam became one of the main supply routes for all the Allied forces operating in this area.

On January 26, 1950 when the constitution of India came into force, Assam became a state of the republic.

A movement for independence, which started in 1955 among the Naga tribes in the Tuensang frontier division of the North East Frontier Agency and in the Naga Hills district of Assam, developed into a rebellion in 1956-57, necessitating operations by the Indian army. As of December 1, 1957 the whole area affected was placed under the direct administration of the Central Government of India.”

49. The above historical background of Assam, therefore, has to be kept in view in examining the need for enacting the impugned statutes which would in that context have to meet the requirement of fair, just and reasonable procedure established by valid law. Indeed, if the circumstances warranted by the historical background and as pleaded before us are examined, in our view, a social purpose is fulfilled by the impugned statutes. The question is whether this is permissible. The answer must be clearly in the affirmative. It is the State's duty to see that the rule of law enunciated by Article 21 is available to the greatest number.

50. The right of private defence is recognised in criminal law (See Sections 96, 97, 99 and 100 I.P.C). Thus it is possible that in appropriate cases in exercising the right of private defence a person may even kill. The only postulate is that the act of killing will have to be tested on the principle as to whether the person concerned should legitimately have gone to the extent of killing in exercising his right of private defence. The Supreme Court in Mohd. Khan v. M.P State, A.I.R 1972 (2) S.C.R 152 (10) held,

“The law does not require a law abiding citizen to behave like a coward when confronted with an imminent unlawful aggression. . . . . . . . the right of private defence is thus designed to serve social principles and deserves to be fostered within the prescribed limits.”

51. The right of private defence is no longer restricted to a person himself being under attack or being subjected to assault. To quote from Halbury's (Para 1180 Vol. XI, IV Ed.), “a person acting in self-defence is normally acting to prevent the commission of a crime, as is a person acting in defence of another. The test to be applied in such cases is now established to be the same as for cases of prevention of crime, that is the force used in self-defence or in defence of another must be reasonable in the circumstances.”

52. Even a stranger can act to prevent crime. More so those who are likely to be affected intimately by the commission of a crime on the principle of the right of private defence as was held in R.V Duffy, 1966 (1) A.E.R 62 (11):—

“The source of error in this case, as it appears to this court is, as we have said, that everyone, including counsel at the trial and again before us, seems to have overlooked that in reality and in law the case of the appellant was not trammeled by any technical limitations on the application of the plea of self-defence, and this court is not here concerned, to consider what those limitations are. Quite apart from any special relations between the person attacked and his rescuer, there is a general lit even as between strangers to prevent a felony. That is not to say, of course, that a newcomer may lawfully join in a fight just for the sake of fighting. Such conduct is wholly different in law from that of a person who in circumstances of necessity intervenes with the sole object of restoring the peace by rescuing a person being attacked. That, credible or otherwise, was the basic defence advanced by the appellant.”

53. Winfield on Tort (XIth Ed.) observes as follows:

“There is no doubt that the right extends to the protection of one's spouse and family, and, whatever the limits of this defence, almost certainly anyone can be protected against unlawful force for the independent reasons that there is a general liberty even as between strangers, for the use of such force as is reasonable in the circumstances in the prevention of crime.”

54. Likewise in Salmond's Law of Torts (XVIII Ed.) the exposition of law of self defence is, inter alia, in the following words: —

“It is lawful for any person to use a reasonable degree of force for the protection of himself, or any other person against any unlawful use of force. In the older books a distinction is drawn between the defence of oneself and of certain persons with whom one is closely connected (such as a wife, child or master), and the defence of a mere stranger. It may be safely assumed, however, that at the present day all such distinctions are obsolete and that every man has the right of defending any man by reasonable force against unlawful force, even if he has made a genuine mistake about the perilous position of that other.”

55. Noticing with approval the observations in Turner v. M.G.M Pictures Ltd., 1950 (1) A.E.R 449 (12), Salmond quotes: —

“If you are attacked with a deadly weapon you can defend yourself with a deadly weapon or with any other weapon which may protect your life. The law does not concern itself with niceties in such matters. If you are attacked by a prize-fighter you are not bound to adhere to the Queensberry rules in your, defence.”

56. Surely if individuals have this right and even strangers can intervene than the State which is under an injunction by Article 21 of the Constitution, can enact statutes to subserve the social purpose of ensuring public order so that life and liberty is preserved. The niceties of the quantum of force in a particular case will depend upon the facts of the case, as was ruled by the Supreme Court in Yogendra Morarji v. State Of Gujarat , A.I.R 1980 S.C 660 (13). Their Lordship observed, “but the mere fact that he did not assess the necessity of firing each successive shot does not negative good faith on his part in the exercise of his right because a person placed in peril is not expected to weigh in golden scales what amount of force is necessary to keep within the right.”

57. We may here refer to the relevant pleadings. Graphic description with particulars are found in the affidavit filed on behalf of the Union of India by way of return to the rule nisi. The State Government has also filed a counter affidavit. Paragraph 3 of the affidavit filed by the State Government in Inderjeet Barua's case states that the deponent craves leave to refer to and rely upon material which had already been placed before the High Court as per directions of the Supreme Court dated April 16, 1980 in Special Leave Petition No. 4377 of 1980. We may, therefore, with advantage refer to some of the paragraphs in the affidavit filed in that S.L.P which has become a part of the record before us. Paragraph 3 of the petition under Article 136 (1) of the Constitution of India states that for a period of seven months extensive agitation have been taking place in the State of Assam over the issue of foreign nationals in which the various Assammese organisations, including the student organisations, have been participating. The disturbing consequences of the said agitation has been that communal harmony between different linguistic, ethnic and religious groups has steadily worsened. There have been various incidents of assault, arson, murder, intimidation and other criminal activities, which have been recurring. The militancy of a section of the people had also posed a serious threat to the law and order situation in the State. Various groups of able-bodied and militant persons have been organised and were receiving training in the use of arms. These forces had adopted aggressive attitude on the question of foreign nationals. In para 4 it is stated that reports had been received that some terrorists elements had infiltrated in certain organisations in the State for the purpose of creating violence and chaos in the border State of Assam. There was also information indicating that sections of organised groups were trying to forge links with some of the underground elements from outside the State for procuring arms ammunitions and explosives. The said anti-national and antisocial elements were trying to create a situation where there was an imminent threat of violence suddenly erupting in the entire State. In para 5 it is mentioned that in the course of the prolonged agitation the communal forces in the State were also trying to organise disturbances and were likely to resort to violence which may lead to communal disturbances of a serious nature. Thus law and order situation was in serious jeopardy which would affect the life and property of the citizens in the State. The situation had become so bad that it was impossible to run the State with the use of ordinary police force. In para 6 it is said that in view of the above situation the impugned notifications were issued. In para 7 it is urged that it was necessary to enforce the Acts for the suppression of disorder and for the restoration and maintenance of public order in a border State. All these factors were before the Governor which persuaded him to issue the impugned notifications as in his opinion the situation in the State of Assam was extremely disturbing and dangerous. Indeed, the situation was so bad that it was necessary to invoke these powers to preserve the security and integrity of the State and maintain public order. The threat to life, liberty and property of persons whom the agitators regarded as aliens in Assam was in peril. All this was considered by the Governor as relevant factors to take immediate action in issuing the impugned notifications. There had been great sufferings caused to innocent citizens and there was disruption of normal life. The militant elements were trying to bring the normal life in the State to a grinding halt and create unsettled conditions in the State.

58. The above affidavit was filed way back in 1980. The supplementary affidavit sworn on January 28, 1982 was filed by B.P Mishra, Deputy Secretary to the Government of India, Ministry of Home Affairs, New Delhi. In paragraphs 10 to 15 not only the historical perspective but graphic details of what has happened in Assam is sworn to. At this stage it would be sufficient to notice what is deposed to in paragraphs 13, 14 and 15 of this affidavit.

59. In paragraph 13 of the supplementary affidavit it has been urged that the problem of North East Frontier Area is not of recent origin. The area has been sensitive on account of its geographical location and the contentions of-the petitioners should, therefore, to be considered in the light of the situation of and in the North East region. In paragraph 14 it has been started as a fact that certain areas in the North Eastern part of India have been witnessing insurgency with declared succession its objectives for quite sometime since 1955. There have been large scale violence, trained guerilla activity and warfare in which civil population, government offices and even the personnel of the security forces have been attacked. Giving facts and figures of violent incidents including killings, it has been urged that the situation was such which required vast deployment of security forces along the international border and within the States in that region. Despite that there have been infiltration of personnel of the underground insurgent groups from international borders. Referring particularly to the situation in Assam where such activities as aforesaid have been going on it has been contended in paragraph 15 that prolonged agitation in Assam has created a situation of bitterness, suspicion, distrust and violence. There have been frequent and extensive cases of killings and damaging government and other national property including railway tracks, oil pipelines, AIR transmitters etc. Even the Commissioner of upper Assam division was killed in an explosion in the chair in which he sat down in his office chamber on April 6, 1981. Large quantities of explosives, arms and ammunitions have been recovered from various dumps. Sketch map of oil installations and pipelines in Assam were also recovered during investigation of acts of unsurpassed violence. The violent activities in Assam are such as are normally associated with Guerilla operations. Training camps to impart training in use of arms, camouflage, counter attack, vehicle ambush, foot ambush, surprise attack etc. have been discovered. In such a situation, it has been urged, not only the passing of the impugned statutes but issue of the various impugned orders was fully justified in order to suppress disorder and restore public order.

60. From times immemorial it has been the duty of the State, whether represented by a king or any other form of government to maintain public order and safeguard the lives and properties of the citizens of a civilised society. To enable the State to do so it must wield power and that power is the capacity and capability to use force, at least use force to a legitimate extent to see that order is preserved. Therefore, one may well say that the sanction behind authority is represented by the force that the State wields. This force, however, can only be used to maintain and enforce the rule, of law. The State cannot misuse this power as use of force is only permissible for maintaining law and order or public order or protect the integrity or ensure the security of the State. Force can be only used in the interest of the well being of society and not for its own sake. In ancient India such force was called “Danda”. The power of the State to wield force was “Danda sakti”. One may with advantage quote from Dr. Nagendra Singh's Juristic Concepts of Ancient Indian Polity to show what was concept in ancient India and correlate it to the concept in our Constitution, which we feel, is precisely the same. It has existed in our great country from times immemorial. The learned Judge of the World Court writes in his aforesaid book:

“Though danda is the central pivot of the theory of the State, its concept is strictly restricted and regularized by that of dharna and hence the ancient State, though stipulated a sanction to prop the authority of the State, was in no sense a military dictatorship. The overall supremacy of the dharma was so well established in the political theory of ancient India that the king who was the embodiment of danda was destroyed if he acted contrary to the known laws of Dharmasastra. This is expressly stated in the Mahabharata when Prthu, “the king of men”, took an oath (Pratijna) to subordinate his inclinations to morality and to observe the eternal laws of dharma. This followed the evil rule of King Vena and his legend of destruction is given in Santiparvan of Mahabharata in great detail. Prthu's oath again correlates dharma with danda and recognizes the king's position as a mere medium for attaining dharma: “yas catra dharma itukto dandanitivyapaksayah” (“Santiparvan”, LVIII, 115 — 19). The action of Prthu forms a social contract as it were and subordinates permanently the concept of kingship to the overriding promise or oath to enforce obedience to the laws of dharma.

This social contract theory has also been evolved in the west but is much later in date since its principal exponents, Hobbes and Locke, flourished in the Psot-Reformation period. Again, there are points of difference as well as similarity between the Eastern and Western versions of this theory which attempt to explain the origin of the political world. For example, Hobbes believes that tired of the anarchic condition people, surrendered a part of their rights to the sovereign and hence the latter was created as a result of an agreement and among the people rather than a contract between the sovereign on the one side and the people on the other. Again, according to Hobbes, this agreement between the people imposed no obligations upon the sovereign whose powers were unlimited. The theory of origin of the State as propounded by the Mahabharata and Dighanikaya does visualize a contract but certainly not the type which Hobbes contemplates according to which the people alone are saddled with the burden of obligations. In accordance with the Mahabharata, the king gets no unlimited rights because his powers, born of danda-sakti are restricted not only by the contract, but also by the supreme code of law given by Brahmadeva himself.”

The above concept adapted to the modern State is precisely what is found in Articles 14, 19, 21 and 22 of our Constitution. We may remind ourselves of the words spoken by Das and Mukherjee, JJ. in Gopalan's case which we have already quoted in extenso in the earlier part of our judgment.

61. If that be the correct approach, and in our view that is the only practical, reasonable and pragmatic approach both in law and in social philosophy, the impugned enactments and orders have to be tested on the touch-stone of Articles 14, 19 and 21 from the point of view of what will be in the best interest of the society in general and for ensuring the integrity and security of our country and particularly the State of Assam in particular. Subject to what we are going to hold in respect of the individual provisions of the Acts impugned by the petitioners, we are of the firm view that the Legislature of Assam and Parliament were justified in enacting the impugned statutes and their action in doing so was just, fair and reasonable.

62. Before we proceed to examine the challenge to the individual sections of the impugned statutes it is necessary to understand as to what is the meaning to be given to the terms “disturbed area” and “public order” as used in the impugned statutes.

63. “Disturbed area” has not been defined in either of the two statutes and in our opinion rightly so. The term defies any definition. A disturbed area has to be adjudged according to location, situation and circumstances of a particular case. As the term implies only such area would be disturbed area where there is absence of peace and tranquility. Nevertheless, one can take guidance from the long title and preamble of the Assam Act and Section 3 of the Central Act to understand what the two Legislatures meant by the term “disturbed area”. In the Assam Act we may notice the words “suppression of disorder and for the restoration and maintenance of public order” both in the Preamble and the long title. The use of these words implies that disturbed area is such in which disorder of such a type is in existence that it may be regarded as a public order problem. In the Central Act Section 3 lays down that a notification in respect of disturbed area may be issued in regard to such area as “is in such disturbed or dangerous condition that use of armed forces in aid of civil powers is necessary.” Both Parliament and the Assam Legislature were conscious of the historical background of the State and the conditions that have prevailed there for centuries and more particularly in recent past when they enacted the respective legislations. The Legislatures must be presumed to be in the know of what was understand by the term disturbed area, the term having been used as such in previous legislations, e.g the Assam Disturbed Areas (Special Power of Armed Forces) Ordinance, 1947. The Armed Forces (Special Powers) Act, 1947 the armed Forces (Special Powers) Regulations, 1958 and other similar enactments enacted for other regions or areas of India from time to time. The various special legislations that were made for Delhi, Punjab, West Bengal, Assam etc. at the time of and immediately after the partition of the country in 1947/1948 used the term “disturbed area”. Even in those legislations the term was not defined. It need not have been defined. Everyone at that time knew what the situation was and understood what the term meant. As we have said earlier, the term would take a connotation relevant to the place, time and situation. Further, disturbed area in an otherwise non sensitive area would have one connotation but will have another connotation in a sensitive area like Assam. Therefore, not only guideline is clearly available to understand what the term means when used in the two statutes with which we are concerned, but it is a term which need not be defined.

64. The term “public order” is a term which is no longer considered to be a vague term but is clearly understood. We may with advantage recollect the famous words of Hidayatullah, J. (as he then was) in Ram Manohar Lohia v. The State of Bihar and another, A.I.R 1960 S.C 740 (14). These words would be relevant not only to understand the concept of “public order” but also that the term may have to be understood in the context in which it has been used in a particular statute or order. The learned Judge observed as under: —

“The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the defence of india act but disturbances which subvert the public order area. A District Magistrate is entitled to take action under R. 30 (1) (b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.

It will thus appear that just as “public order” in the rulings of this Court (Earlier cited) was said to comprehends disorders of less gravity than those affecting “security of State”, “Law and order” also comprehends disorders of less gravity than those affecting “public order”. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State.”

65. In Wasi Uddin Ahmed v. The District Magistrate Aligarh, U.P and others, A.I.R 1981 S.C 2166 while examining certain provisions of the National Security Act, 1980, the Supreme Court again started as to what is the meaning of the term “public order”. The argument was that the impugned detention of the petitioner could not, on the basis of the grounds of detention served on him, connect the alleged activities with maintenance of public order, but grounds related to maintenance of law and order. Noticing with approval the observations of Hidayatullah, J. (as he then was) quoted above, it was observed, “that any contravention of law always affects order but before it could be said to affects ‘public order’, it must affect the community or the public at large.” Thus the distinction in law between areas of “law and order” and “public order” lies not merely the nature or the quality of the Act but upon the degree and extent of its impact upon the society. An act likely to affect public order will always be a law and order question also the reverse proposition may not be correct. Similarly in Arun Ghosh v. State of West Bengal, A.I.R 1970 S.C 1128 (15) was earlier observed that the distinction between and order and public order is one of the degree and the extent of the impact of the act upon the society. In its quality it may not differ but in its potentiality it may be very different. Therefore, when Mr. Salve urged that there was no qualitative difference between the acts which amount to breach of law and order and which amount to breach of public order, the contention cannot be accepted as wholly correct. The same act in a given set of circumstances may affect “law and order” while in another set of circumstances it may affect “public order”. Therefore, quantitatively, at least, and also sometimes qualitatively, the same act may have a different import.

66. We now turn to the provisions of the two Statutes and examine the challenge qua them.

67. Inviting our attention to Section 2 of the Assam Act and Section 2 (b) of the Central Act read with Section 3 of the Assam Act and Section 3 of the Central Act respectively it was submitted that power has been given to the Governor of Assam to declare an area as disturbed area without defining the term “disturbed area”. Thus the power conferred is liable to be struck down as being arbitrary power, there being no legislative guidelines. The argument cannot be accepted. As we have noted earlier guideline is available from the preamble and the long title of the Assam Act as far as Assam Act is concerned and from the very reading of Section 3 of the Central Act as to in which circumstances an area can be declared as a disturbed area. Further, advisedly, the Legislature as not defined the term because what may be regarded as a disturbed area in a particular zone may not be regarded as a disturbed area in another zone in the country. The Legislatures must be presumed to be conscious of not only the location of the Assam geographically but the state of affairs and conditions in Assam both historically and at the time of passing the impugned Acts. We also feel that the term “disturbed area” was well understood by the Legislatures as well as the people of India in view of the various legislations which had existed on the Statute Book prior to the passing of the impugned Acts. Reference may be made to the Armed Forces (Emergency Duties) Act, 1947, amended by Acts IV of 1948, III of 1951 and LVIII of 1960. Similarly, there was the Armed Forces (Special Powers) Act, 1948, Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947, The Assam Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947, the East Punjab and Delhi Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947 and the United Provinces Disturbed Area (Special Powers of Armed Forces) Ordinance, 1947. Section 2 of the Armed Forces (Special Powers) Act, 1948 gave special powers to officers of Military and Air Force in areas with regard to which a proclamation under sub-section (1) of Section 15 of the Police Act, 1861 had been made or which for the time being had been declared by the Provincial Government under any other law to be a disturbed or dangerous area. Section 15 of the Police Act, 1861 also speaks of an area being declared to be in a disturbed or dangerous state. In none of these enactments disturbed or dangerous area has been defined. We may with advantage take note of the fact that the aftermath of the partition of India in 1947 which necessitated action to be taken to use force in disturbed areas gives clear indication of what kind of areas and what kind of circumstances can be regarded as creating a situation in an area which would make that area a disturbed area or dangerous area. It is not, therefore, necessary to give any clear cut definition as the term is well understood. Referring to the pleadings of the parties, which we have already noticed, it is obvious that in the situation obtaining the Legislatures could regard Assam as a State in which areas could be in such a disturbed condition as to justify declaration of disturbed area, a term by then well understood.

68. With regard to Sections 4 and 5 of the Assam Act Sections 4 and 5 of the Central Act the contention on behalf of the petitioners is that the width of the power conferred makes the sections suffer from the vice of being arbitrary or in words unjust, unfair and unreasonable. The power conferred on low ranking officials like a Havaldar is also adverted to emphasise the unreasonableness of the power conferred. It was contended that the power to kill on the formation of opinion of the various officers and officials mentioned is unreasonable in view of the absence of any safeguards. The argument is unacceptable. In our opinion, no absolute or unguided power has been conferred. There are sufficient safeguards postulated to ensure proper exercise of power. First of all it has to be kept in view that the impugned Statutes are for a region which traditionally has had serious trouble. It is a border area. Infiltration of undesirable forces has existed for a long time. The powers conferred by Sections 4 and 5 of the two statutes may be exercised in such an area and not in any other area of our country. The second postulate is that even in the aforesaid area the powers can be exercised only after a declaration has been made by the highest authority of the State that the area is a disturbed area. The powers can be exercised only in an area declared a disturbed area and in no other area in the State of Assam. The third requirement is that even in an area declared to be a disturbed area there has to be a law or order, like an order under Section 144, Criminal Procedure Code, in force before the powers under section 4 can be exercised. Even then the power can be exercised only in respect of those who are violating the law or order promulgated in disturbed area and not in respect of those who are law abiding. In other words, the impugned power is exercisable in relation to only those who break the law and not those who abide by the law. Further, the exercise of power by the authorised persons is permissible if it is necessary to maintain public order. By this is meant that the breach of law or order like an order under Section 144, Criminal Procedure Code must be such which will affect public order and not merely law and order. Even with all these postulates being there, before exercise of the power a warning is required to be given to those who are in breach of the law or order in force. The words, “if any” in the Assam Act do not mean that it is left to the whim and fancy of a police officer etc. to give a warning or not to give a warning. The words mean that if in the situation it is feasible and practicable to give the warning then the warning must be given before exercise of the power. The next requirement is that force may be used but such force would be used as would be necessary in the circumstances of the situation. Spelling out the extent of permissible force it is laid down that the force used may extend to even firing upon the offenders though that firing results in death. Therefore, as we read the impugned provisions they do not mean that in any and every situation the police officer etc. would just open fire to kill. The power conferred is to use force and if necessary even fire which firing can result in death. There is another very important safeguard and that is that the police officers etc. have not been made immune from action in courts for abuse of power. A provision, however, has been made by Section 6 of the Assam Act as well as Section 6 of the Central Act that the prosecution or civil action and other legal proceedings that the police officials etc. may have to face in connection with exercise of powers contemplated by Sections 4 and 5 of the Assam Act or the similar provision in the Central Act, can be commenced only after taking the sanction of the State Government in the case of powers exercised by officials mentioned in the Assam Act and of the Central Government of officers contemplated by the Central Act. This is to ensure that the officers officials concerned do not have to face frivolous litigation for acts done in due discharge of duty. In our view this is a very important safeguard to prevent abuse of powers. There is, therefore, no force in the argument that the width of the power conferred makes the conferment arbitrary.

69. Mr. Salve urged that the width of the power conferred is draconian and in that context it has necessarily to be borne in mind that the possibility of wanton abuse of the power would make the conferment of the power bad. Reliance was placed on the decision of the Supreme Court in A.K Roy v. Union of India AIR 1982 SC 710. In this case a Constitution Bench of five Judges of the Supreme Court was examining the vires of certain provisions of the National Security Ordinance, 1980 and the National Security Act, 1980. Section 3 of the said Act gave power to the Central Government to detain any person in order to prevent such person from acting in any manner prejudicial to the defence of India, the relation of India foreign powers or the security of India Further, the power of preventive detention could also be exercised in respect of any person with a view to prevent him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community, (emphasis ours). The explanation under section (2) of Section 3 reads as under: —

“Explanation. — For the purpose of this sub-section, “acting in any manner prejudicial to the maintenance of supplies and services essential to the community” does not include “acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community” as defined in the Explanation to sub-section (1) of Section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980, and accordingly, no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act.”

70. The learned Chief Justice, speaking for himself and Bhagwati and Desai, JJ. repelled the argument on behalf of the petitioner that the term defence of India, security of India, security of the State and relations of India with foreign powers were vague. It was observed that in the very nature of things these terms are difficult to define. His Lordship, however, held the words, “acting in any manner prejudicial to the maintenance of supplies and services essential to the community”, in section 3 (2) of the Act to be vague particularly in the context of the explanation under sub section (2). To quote the words of his Lordship:

“The particular clause in sub-section (2) of S. 3 of the National Security Act is, therefore, capable of wanton abuse in that, “the detaining authority can place under detention any person for possession of any commodity on the basis that the authority is of the opinion that the maintenance of supply of that commodity is essential to the community. We consider the particular clause not only vague and uncertain but, in the context of the explanation, capable of being extended cavalierly to supplies, the maintenance of which is not essential to the community. To allow the personal liberty of the people to be taken away by the application of that clause would a flagrant violation of the fairness and justness of procedure which is implicit in the provisions of Article 21.”

71. Basing his arguments on the above observations Mr. Salve contended that inasmuch as the powers conferred by Sections 4 and 5 of the Assam Act and Sections 4 and 5 of the Central Act are capable of wanton abuse the power conferred must be held to be bad.

72. We do not agree. First of all, as we have noticed earlier, there are ample safeguards and postulates to prevent wanton abase. Secondly, A.K Roy's decision though it refers to an earlier decision of a Constitution Bench of seven Judges of the Supreme Court in State of Rajasthan and others v. Union of India, AIR 1977 SC 1361 (16) in paras 25 and 27 of the report and distinguishes that decision qua its applicability on the question of courts not entering the “political thicket”, it seems that on the question of possible abuse of power the observations of the Bench of Seven Judges was not brought to their Lord ships notice in A.K Roy's case: Bhagwati, J, in the case of State of Rajasthan (Supra) dilating on the question of denying a power on the ground of possible abuse observed as under:

“It must be remembered that merely because power may sometime be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief. In the last analysis, a great deal must depend on the wisdom and honesty, integrity and character of those who are incharge of administration and the existence of enlightened and alert public opinion.”

73. We are also of the view that in A.K Roy's case the observations relied upon have to be understood in the context in which the same have been made. The provision was struck down on the principle of possible abuse of power because the power as conferred was vague. That is not the position in the present case.

74. We now notice another argument advanced by Mr. Salve. The contention was that drastic powers have been conferred on low ranking officials like the Havildar which is certainly bad and unjustified. The argument is based on unawareness of the rank and responsibilities of officers like Havildars. In army set up or set ups following the army pattern a Havildar is not such junior official or such an irresponsible officer as Mr. Salve apprehends. The usual organisational set up is that three or more battalions constitute a Regiment. Three or more companies constitute a battalion. Each company is commanded by a commissioned officer or an officer of an equivalent rank. The company itself is divided into platoons, each platoon is again commanded by a commissioned officer, or an officer of equivalent Tank. Each platoon is divided in to three sections. The section commanders are usually Naiks. The non-commissioned officer incharge of the Platoon or a section of the Platoon is a Havildar. He is the direct link between the commissioned officer and the jawans as well as section commanders. A jawan first becomes a lance Naik, then a Naik and thereafter a Havildar. The classes of ranks, apart from the commissioned officers or officers of equivalent rank, are Subedar Major, Subedar, Jamadar, Havildar Major, Havildar/Dafedars, Naik and lance Naik and a soldier. In the hierarchy, therefore a Havildar is fairly high and certainly holds a very responsible position. When troops or forces are deployed the sections or the patrols are by and large commanded by Havildars. That is why the Havildars are treated as and recognised as non-commissioned officers. The three categories of officers generally are commissioned officers, junior commissioned officers and non-commissioned officers. Havildars are non-commissioned officers.

75. We may also advert to the Code of Criminal Procedure for guidance. Section 41 of the Act permits any police officer even without an order from a Magistrate and without a warrant to arrest any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or creditable information has been received or a reasonable suspicion exists of his having been so concerned as well as persons in various other circumstances. The term police officer has been judicially construed in the context of Police Act, 1861 and would include all persons enrolled under the Police Act. Therefore, if anyone enrolled under the Police Act can exercise the power of arrest under section 41 of the Criminal Procedure Code restricting the power postulated by sections 4 and 5 of the impugned acts to Havildars and police officials cannot be called a conferment which is bad having been conferred on low ranking officials, as Mr. Salve puts it.

76. We may now turn to the contentions in regard to legislative competence of the Assam Legislature to enact the Assam Act and of Parliament to enact the Central Act.

77. Entry 2 of List 1 of the 7th Schedule to the Constitution reads: —

“Naval, military and air forces; any other armed forces of the Union”.

78. The above entry read with Article 246 of the Constitution empowers Parliament to make any law with regard to naval, military and air forces and other armed forces of the Union, i.e other than naval, military and air forces. This proposition needs no further elaboration. Parliament had the legislative competence to enact the Central Act dealing with the forces mentioned in Sections 4 and 5. The contention was that inasmuch as making provision for maintenance of the public order is within the legislative competence of the State Legislative by virtue of entry 1 of List II, the Parliament was not competent to legislate for use of armed forces of the Union to be used for that purpose. No doubt maintenance of public order is a State subject. Nevertheless, what has been provided in the Central Act is that the armed forces of the Union would come to the aid of civil power only on a declaration by the Head of a State or Union territory declaring an area to be “disturbed area”. It is provided that the armed forces will be used in aid of civil power. This necessarily postulates that the State's civil authorities whose primary duty it is to maintain public order may be assisted by the armed forces of the Union. The intervention of the armed forces of the Union contemplated by Section 4 of the Central Act is only when a declaration has been made under Section 3 of that Act. What is permitted by the Central Act is the use of the armed forces of the Union which are under Central control in aid of civil power of the State. Indeed even the Criminal Procedure Code permits such use. Section 130 of the Criminal Procedure Code contemplates use of armed forces to disperse unlawful assembly and even to arrest and confine persons forming part of it. The only injunction is that minimum force relevant to the situation will be used in dispersing, arresting and detaining persons constituting the unlawful assembly. Somewhat similar scheme is envisaged by a conjoint reading of Sections 3, 4 and 5 of the Central Act. Deployment of armed forces can only be by virtue of a declaration of the Head of the State or Union territory and in view of the situation that is required to be met. We have already dilated on the question of the use of force as contemplated by the impugned sections. It is worth noticing that the power to arrest is reiterated in Section 4 (c) of the Central Act. That power is again in relation to cognizable offence. The safeguard is that any person arrested has to be handed over to the civil authority forthwith. The presence of a Magistrate as contemplated by Section 130 of the Criminal Procedure Code is dispensed with. However, the very deployment of forces is by virtue of the requirements of the need to strengthen civil power and that is enough. What the Central Act authorises is the use of central forces. It will be an incorrect approach to contend that what the Central Act deals with is only public order.

79. Coming now to the Assam Act, we do not find that there is any conflict between the Code of Criminal Procedure, which is a Central Act passed by the Parliament, and the impugned Act. No doubt maintenance of public order is State subject and is also dealt with by the Code of Criminal Procedure but what the Assam Act deals with is a situation which can be regarded as a situation more grave than what is contemplated by the Criminal Procedure Code. The State Legislature is entitled to legislate in regard to police forces and its Magistrates. On this there can be no dispute. The question raised is whether it can legislate with regard to utilisation of the services of Assam Rifles.

80. The Assam Rifles is an armed force constituted by an act deemed to be an Act of Parliament, namely, the Assam Rifles Act, 1941 which repealed and replaced an earlier Act known as the Assam Rifles Act, 1920. Therefore, the Assam Rifles has been constituted by and under a Central Act as opposed to a State Act. Further, the general superintendence and control of this force vests in the Central Government or such person or authority as the Central Government may appoint (vide Section 3 of the Act). The powers and duties that may be conferred on Commandant, Assistant Commandant etc. are conferrable by the Central Government (vide Section 10A of the Act). Section 11 of the Act lays down that for the purpose of Sections 128, 130 and 131 or the criminal Procedure Code, a Commandant, Assistant Commandant, Subedar Major, Subedar or Jamadar of the Assam Rifles shall be deemed to be an officer; a Havildar Major or Havildar or Naik of the Assam Rifles shall be deemed to be a non-commissioned officer, and a Bugler or Rifleman shall be deemed to be a soldier of the Indian Army. The power to make rules with regard to the Assam Rifles again vests in the Central Government. There can, therefore, be no doubt whatsoever that the Assam Rifles would be part and parcel of, “any other armed forces of the Union” postulated by Entry 2 of List I of the 7th Schedule of the Constitution. The power to utilise the services of the Assam Rifles, which is an armed force of the Union was available to the State Government only as contemplated by the Criminal Procedure Code or as may be spelt out by the Central Act. But the State legislature, in our view, could not legislate in regard to Assam Rifles. Therefore, to that extent certain powers conferred by Sections 4 and 5 of the Assam Rifles or officers of the Assam Rifles would be beyond the legislative competence of the Assam legislature. Accordingly we hold that the following words in Section 4 of the Assam Act: “or any officer of the Assam Rifles not below the rank of Havildar” and the following Words in Section 5 of the Assam Act: “or any officer of the Assam Rifles not below the rank of Jamadar” are ultra vires of the Assam legislature and have to be struck out from Sections 4 and 5 of the Assam Act, being severable.

81. In the view that we have taken it is not necessary to comment on the effect of the enactment of entry 2A in List I of the Seventh Schedule.

82. We must reject the challenge to the vires of Section 5 of the Assam Act made on the ground that Section 5 impinges upon or powers contemplated by the Arms Act, a central legislation. The arms Act deals with the manner of possessing and acquiring fire arms and ammunitions and which fire arms or ammunition can be possessed or acquired. It also deals with licensing, manufacturing, sale etc. of arms and ammunition as well as licences for storing, possessing etc. of fire arms and ammunitions. It also deals with revocation of licences granted. Section 20 no doubt permits arrest of persons conveying arms etc. under suspicious circumstances but prohibition to carry arms even licensed can only be ordered by provisions like Section 144 of the Criminal Procedure Code. Where such an order is in force or any law or order analogous to them is in force carrying of arms and ammunition in breach of such law an order would be a crime. Neither the arms Act nor the Code of Criminal Procedure contemplate a situation as postulated by Section 5 of the Assam Act. Such a situation in the context of declaration of a disturbed area is a different problem and making provision for it in Section 5 of the Assam Act cannot be regarded as being in conflict with any provision of the arms act or in excess of legislative competence. We cannot persuade ourselves to hold that either Section 4 or Section 5 of the Assam Act are, therefore, repugnant to any law made by Parliament or deemed to have been made by Parliament. Reliance placed on Tika Ramji and others v. The State of Uttar Pradesh and others AIR 1956 SC 676 (17) and Deep Chand v. State of Uttar Pradesh AIR 1959 SC 648 (18) is misplaced. In Tika Ramji's case the Supreme Court was concerned with the alleged repugnancy arising by reason of both Parliament and the State Legislature having operated in the same field in respect of a matter enumerated in the concurrent list, i.e food-stuffs covered by Entry 33 of List III. The contention was that the U.P Sugarcane Regulation of Supply and Purchase Order, 1954 trenched upon the field covered by the Essential Commodities Act, 1955 passed by the Central Legislature. It was held that the Central Government was well within its powers in issuing the Sugarcane Control Order, 1955 but at the same time the U.P Legislature was empowered to enact law in regard to Sugarcane. The Central Legislation was with regard to fixation of minimum price for sugarcane to be paid to cane growers. The U.P legislation did not in any way impinge upon that field. Therefore, the ratio was that there should be no overlapping in the same field so as to produce a conflict and if legislative competence is there then in regard to the same subject matter both legislatures can legislate.

83. In Deep Chand's case the principles laid down was that where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent list contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, such law made by the State Legislature shall, if it has been reserved for the consideration of the President and has received his assent prevail in that State. If the President's assent has not been sought or given as contemplated by Article 254 of the Constitution then the provisions made by the State Legislature will have to be held as repugnant to Central Legislation. The Assam Act, admittedly, has neither been placed before nor received the assent of the President, but that was not necessary. We, hold that the Assam Act operates in a field different from the Central Act and Laws and there is no overlapping at all so as to result in repugnancy.

84. We may now comment upon another argument that was advanced by Mr. Salve. He contended that unlike the Armed Forces (Special Powers) Act, 1948 which was to remain in force only for a period of one year there is no limit provided in the Central Act. It can remain in force for ever and could be used at any point of time. There is no force in the argument. The powers conferred by the Central Act can only be exercised as long as there is a subsisting declaration of a disturbed area and only in respect of that area as contemplated by Section 3 of the Central Act. Once the situation is normal and the declaration is rescinded, the Act will not apply.

85. One other submission made by Mr. Salve was that if the impugned statutes are required only to meet an increase of crime the situation could easily have been met by the proclamation contemplated by Section 15 of the Police Act. He relied on Malladi Narayanamuthi and others v. State of Andhra Pradesh, 1972 Criminal Law Journal, 532 (19) in aid of this submission. Once again there is no force in the contention. Varying degrees of disorder may require, exercise of various degree of force. The force that could be used by the State has to be controlled by valid legislation. This is a basic postulate of organised society, and is certainly a dictate of our Constitution. Therefore, when the incidence of crime or prohibited acts goes beyond the limits which could be controlled by Criminal Procedure Code or the Police Act the State may find itself helpless to deal with the situation and discharge its primary duty of affording protection to citizens, and others. The State arming itself with additional power cannot, therefore, be regarded as ultra vires the powers of the State. The legislation, however, has to pass the test of Constitutionality. We have already held that that the two Acts pass that test. Nebulousness of the situation cannot be pleaded for, as we have said earlier, the gravity of disturbed conditions has to be judged from diverse angles as may be relevant.

86. In the view that we have taken we need not comment at any great length upon whether mere valid classification would be sufficient to uphold a legislation under Article 14 of the Constitution. Though, in Ajay Hasia etc. v. Khalid Mujib Sehravardi and others etc. AIR 1981 SC 487 (20), it has been observed, that classification is a test and not the end, the case does not lay down a rule that valid classification will not considered at all as justifying discrimination. In the case of the impugned Acts the classification is between those who violate a law or order and those who do not. Surely this is valid classification. It also has a nexus to the object to be achieved, the object to restore peace.

87. The result of our discussion is that we hold the assam act and the central act to be valid legislations except to the extent of the Assam Legislature legislating for Assam Rifles and the words which in Section 4 and 5 of the Assam Act we have held to be beyond the legislative competence of the Assam Legislature. We also uphold the promulgation of the two declarations by the Governor of Assam under Sections 3 of the Assam Act and the Central Act Consequently, we uphold the promulgation of the order under Section 144 Criminal Procedure Code.

88. In consequence, we have to hold that the interim relief granted by learned Judges of the Gauhati High Court cannot be made absolute.

89. Accordingly L.P.A 108/80 is dismissed. The rules issued in C.W 832 and C.W 833 of 1980 have to be discharged except to the extent of striking down of the words, “or any other of the Assam Riffles not below the rank of Havildar” in Section 4 of the Assam Act and the words, “or any officer of the Assam Riffles not below the rank of Jamadar” in Section 5 of the Assam Act, with regard to which the rules are made absolute.

90. The rule in C.W 834 of 1980 has to be discharged and the petition dismissed for reasons given earlier.

91. The three petitions and one appeal are decided accordingly. The parties are left to bear their own costs.

Petitions partly allowed.