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Indrajit Barua vs. The State of Assam and Ors., AIR 1983 Delhi 513

The document discusses two court cases related to restrictions on constitutional rights and the Armed Forces Special Powers Act. It analyzes how restrictions can be tested under Article 19 and 21 of the Constitution, and discusses issues raised in the Naga People's case related to arbitrariness and unconstitutional powers under AFSPA.

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shashank patel
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83 views2 pages

Indrajit Barua vs. The State of Assam and Ors., AIR 1983 Delhi 513

The document discusses two court cases related to restrictions on constitutional rights and the Armed Forces Special Powers Act. It analyzes how restrictions can be tested under Article 19 and 21 of the Constitution, and discusses issues raised in the Naga People's case related to arbitrariness and unconstitutional powers under AFSPA.

Uploaded by

shashank patel
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© © All Rights Reserved
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Indrajit Barua vs. The State of Assam and Ors.

, AIR 1983 Delhi 513

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 organized 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.
Naga People’s Movement of Human Rights v. Union of India, AIR 1998 SC 431

In the Naga People’s Case, the courts looked at different issues specifically on the point
of arbitrariness and the unconstitutional powers as declared by the courts under AFSPA.
Many contentions were raised against the power to shoot under AFSPA, the immunity
given under AFSPA and the powers granted by the Centre for prosecuting the armed
personnel. But even after so many criticisms surrounding this act, there were no
arguments related to the rights of people in such areas except that it should be less
stringent so that people are not harassed. AFSPA needs to be looked from the point of
view of constitutional morality also taking into account other approaches available that
the Supreme Court has made important in a democracy. This eventually means that under
AFSPA the governor of the state and the central government has the power to declare any
part of the state or any small part of the state as a disturbed area. AFSPA was held
constitutionally valid in this case by the Supreme Court of India. Parliament in all its way
is competent to enact the act in the view of Entry 1 of State List and Article 248 which is
read with Entry 97 and Entries 2 and 2-A of Union List and by this Parliament had the
power to enact this in the year 1958.

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