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REPORT OF THE COMMITTEE TO REVIEW THE ARMED FORCES (SPECIAL POWERS) ACT, 1958 Part 4

REPORT OF THE COMMITTEE TO REVIEW THE ARMED FORCES (SPECIAL POWERS) ACT, 1958 Part 4

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Published by Sampath Bulusu
REPORT OF THE COMMITTEE TO REVIEW THE ARMED FORCES (SPECIAL POWERS) ACT, 1958 headed by Justice B.P. Jeevan Reddy, Former Judge of the Supreme Court of India Part 4
REPORT OF THE COMMITTEE TO REVIEW THE ARMED FORCES (SPECIAL POWERS) ACT, 1958 headed by Justice B.P. Jeevan Reddy, Former Judge of the Supreme Court of India Part 4

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Categories:Business/Law
Published by: Sampath Bulusu on Jun 18, 2010
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06/18/2010

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67
PART-IVRecommendations
The Committee has carefully considered the various views,opinions and suggestions put forward by the representatives oforganisations and individuals who appeared before it as also thepresentations and representations made by the concerneddepartments of the governments, security agencies and otherorganisations and individuals.
2.
While devising a solution to the problem referred to theCommittee, it has to bear in mind the following three basicconditions viz.,
ONE
- The security of the nation, which is of paramountimportance. Security of the nation involves security of the Statesas
well.
The very first entry in the Union List in the SeventhSchedule to the Constitution speaks of defence of India and everypart thereof which means and implies that it is the power andobligation of the President, the Parliament and the UnionGovernment to ensure the defence of India and of every partthereof. Though purporting to be a division of legislative powersbetween the Union and the States, the Seventh Schedule to theConstitution, it is well accepted, does represent the division ofpowers between the Union and the States. Even if a law is notmade under and with reference to a particular entry / legislative
head,
the executive power would still be available under thatentry. Lists-I and II set out the legislative heads / powers of theUnion and the States respectively while List-Ill sets out thelegislative heads, with reference to which both the Parliamentand the State Legislatures can make laws, subject, of course, to
 
68
the rule of parliamentary predominance recognised by Article
254.
For ensuring the defence of India and of its every part, theParliament can make such law and / or the Union governmentcan take such executive action, as may be found necessary orproper. Some of the ways in which the Union governmentperforms the said obligation are mentioned in Articles 352 to356,(as pointed out in Chapter II of Part II of this Report.Article 355, which places an obligation upon the Union to protectevery State against external aggression and internal disturbanceand also to ensure that the Government of every State is carriedon in accordance with the provisions of this Constitution, has alsobeen referred to at some length in the said part of this Report).It is necessary to clarify that the Constitution does notcontemplate that the obligation to protect the States in the Unionshall be carried out by the Union Government only by invokingArticle 352 (external aggression or internal rebellion) or Article356 (to ensure that the government of every State is carried onin accordance with the provisions of the Constitution); the saidobligation can be performed in such manner as may be foundappropriate, without of course violating the spirit and letter of theConstitution. Now, coming to Article 355, it may be reiteratedthat the obligation created by Article 355 includes the duty toprotect every State against internal disturbance as
well.
"Internal disturbance", as pointed in Part II of this Report,represents a very serious, large scale and sustained chaoticconditions spread over a large area of the State. It is no doubtthe power and obligation of the State Government to maintainpublic order as is evident from Entry 1 of State List in theSeventh Schedule to the Constitution. However, the said entryread with Entry 2A of the Union List means that (a) where the
 
69
State Government finds that it is not able to maintain publicorder and it is of the opinion that the aid of the armed forces /forces under the control of the Union is necessary for maintainingor restoring the public order, it can request the UnionGovernment to send the armed forces to maintain and restorethe public order; (b) even where the State Government does notso request but the Union Government is satisfied that forprotecting the State from "internal disturbance" i.e. to save itfrom domestic chaos or internal commotion, it is necessary' todeploy armed forces of the Union, it can do so under Art.355.TWO - It is equally the duty of the Union and the States tonot only respect the fundamental rights conferred upon thecitizens of India by Part III and other provisions of theConstitution; they are also under an obligation to ensure theconditions wherein the citizens can enjoy and avail of thefundamental and other rights available to the citizens. Inparticular, Article 21 of the Constitution expressly declares thatno person shall be deprived of his life or personal liberty exceptin accordance with the procedure established by law. Article 14in Part III of the Constitution ensures to its citizens equalitybefore law and equal protection of laws within the territory ofIndia which means that no citizen or group of citizens shall bediscriminated vis-a-vis any other citizen or group of citizens.Article 19 confers upon the citizens six valuable freedoms viz.,freedom of speech and expression; freedom to assemblepeacefully and without arms; freedom to form associations orunions; freedom to move freely throughout the territory of India;freedom to reside and settle in any part of the territory of Indiaand the freedom to practise any profession or to carry on anyoccupation, trade or business - subject of course to such

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