e-

393 A

LT. COL. PRtTHI PAL SINGB. BED! ETC.

v . .

UNION OF INDIA & OTHERS

August 25, 1982

[Y.V. CHANDRACHUD, CJ, D.A. DESAI AND A.N. SEN, JJ.]

Army Act. 1950-Section 21-Scope f!f-Law prescribing procedure for trial of offences by court mart ial-lf should satisfy requiremens of Article 21 of Constitution--:Absence of provision for appeal-A acuna in the Act.

Army Rules,· 1954~Ruls i2 to 25, 37, 40, 44, 180 and 187-Scope of- Composilion of Court martial-Requirements of-"Corps" if nieans "Army Corps:'-Rules 22 to 24, if violative of Article 21 of the Constitution--Trial 'by Court martial-Prior enquiry by Court of enquiry if obligatory: ' '

' .

Principles. of natural justic~Rules prescribe compliance with principles of natural justice but make it dependent. upon requisition by the person against whom enquiry is held-;-Procedure, if violates-article 21 of Constitution.

Interpretation of statutes--/ntenlion of legislature how ascet:tained.

The petitioner in each of 'the three writ petitiolls \\ihO was to be tried by general court ·artial for.breach of army discipline questioned the legality atid validity of the order convening the general court artial, more particularly its composition.

In their petitions .under Art. 32 of the Constitutioff it was 'contended on behalf of the petitioners that to satisfy the requirements of Article 33 the Jaw. must be a specific law enacted by Parliameni in which a specific provision impo- _sing restrictioti or eveh abrogation .. fof fundamental rights h<;!uld be made;

(2) that rule 40 of the Rules should be so construed as to subserve the mandate of Article 21 that the Army with its total commitment to national security against

forign invasion. must be assured the prized liberty of individual members against unjust encroachment and the court should strike a just balance between military discipline ad. individual personal liberty; aiid (3) that principles of natural justice should be obsefved even in resp.eel of persons tried by the Army Tribunals. ·

:Dismissing the petitionw,

..- HBl..D: The dominant purpose in construing a statute is to ascertain the intention Qf Parliament. One of the v.cll recognised canoi:J.s of construction is that the legislature speaks its mind by use of correct expression and unless~ . there is any ambiguit>: in tht? language of the provision, the Courflshould adopt literal construction if if' does not led to an absurdity. To ascertain the literal

G ,

SUPREME COURT REPORTS [1983] I s.c.11..

meaning it is equally necessary first to ascertain the juxtaposition in which the rule is placed. the Purpose for which it is enacted and the object which it is required to subserve and the authority by which the rule is framed.

(404 F-H; 405 A-BJ

Article 33 of the Constitution which confers power on Parliament to determine to wha; t extent any of the rights conferrd by Part III shall in their , pplica~ tion to the members of armed forces be restricted or abrogated does not obligate. that Parliament must specfically adumbrate each fundamental right and specify in the law the degree of restriction or total abrogation of each right. That would be reading into Art. 33 a requirement which it does not enjoin. The power to legislate i_n respect of any iteffi must be referable to any entry in the relevant legislative list. ThC law has 'to be enacted by Parliament subject to the requirement of Part III read with Art. 33 which itself forms part of Part III. Therefore if any provision of the Army Act is in conflict with fundamental rights it shall have to be read subject to Art. 33 as being enacted with a view to either restriCting or abrogating the fundamental rights to the extent of inconsistency or repug- . nancy between Part III and the Army Act. (412 E-H]

Ram Sarup v. Union of India & Another (1964] 5 SCR 931 : referred to.·

Secticn 21 of the Army Act merely confers an additional power to modify dghts conferred by Art. 19(l)(a) and (c) by rules and such rules may set out the limits of 'restriction. But the specific provision does not derogate from the generality of po_wer conferred by Art. 33. Therefore, it is not possible to accept the co-ntention that the law prescribing procedure for trial of offences by Court Martial DJust satisfy the requirement of Art. 21 . because to the extent the procedure is prescribed by law. and if it stands in derogation of Art. 21 to that extent.

Art. 21 !n its application to the Armed Forces is modified by enactment of the procedure in the Army Act itself. (413 E-G] . . -

Da/bir Singh v. State of Punjab, [1962] Suppl. 3 SCR 25 : held inapplicable ..

Rule 40 which deals with composition of the court martial enjoins botb a positive and negative requirement,: positively that it shall be composed of officers of different corps or departments and negatively that it shall not be composed exclusively of officers of the corps or the department to which the delinquent belongs. Both these requirements are sub-ject to the overriding consideration that one or the other requireri:ient' could be given a go.bye if it is othewise found.not to be practicable. [418 A-C]

The expression '•Army corps" does not carry the same meaning as 'corps'.

The two expressions carry different connotations. Both connote a distinct and different unit in the army. Corps forms a small part of what is called "army corps". [420 DJ

Tbe Indian army is divided into commands and each command is divided into army corps. Corps in this sense means an army formation. Each army corps is composed of divisions, each division is divided into brigades, each brigade into battalions and each battalion into companies. There may be an unattached

• I •

PRITHIPAL v, UNION 395

company not forming part of a battalion and may be independent of any

battalion. Rule 187 (3) (b) treats such unattached company not fOrming part of a battalion as a crops b)> itself. In other words~ eve.ry company is part of snme. battalion because each battalion is subdivided into companies arid that is possibly the army unit which is being designated as crops. Bearing in mind the designation of battalion in infantry and regiment in cavalry, the unit designated • as battalion or regiment will be a crops 'for the purpose of the Act and the Rules. This conclusion is reinforced by reference to rule 187 (1) in which there are

separat~ bodies of persons ea(; h by its very designation1 duties and responsibilities, and functional requiremeqts would not be .part of regUlar army battalion and, therefore,. each has tO be designated as a corps for the purpose of the Act atid the rules. (419 HJ

If various army crops frorn part of the command and if for setting up a general court martial in strict compliance with r.40 is to be insisted upon, persons from different army corps have to be selected. But the inhibition of rule 40 will present arl insurmountable difficulty in that any such general court martial sball 'not be composed exclusively of officers of the. same corps. What is positively desired is that for the composition of a. general court-martial one must strive to secure services of officers of different corps or departments and what muSt be eschewed is its being composed exclusively of officers of the corps or departments to which the delinquent officer belongs. If a restricted meaning. is given to the expression 'corps' th~ rule become~ workable. If 'on the other hand a ider mean"' ing is given so as to substitute' ''army corps" for "corps" it would be wholly un"'orkable because officers-will have to be Sll; mmoned from another command altogether. A vertical movement starting from the bottom which is indicated by reference to battalion and regiment in r.187 (3) clearly indicates that the lowest . formation in the battalion or regiment is corps over and aboVe those specifically designated as corps under t, 187(1). Therefore, the.expression 'corps' in rule 40 must be given the same meaning. as set out in rule 187(3) and it would mean that every.battalion in the infantry.and every regiment in the cavalry would by itself be a corps. [421 D-H; 422 A-DJ \,

To put the personnel of the general court-martial beyond reproach and to

mae it unbiased and objective composition of the court-martial was so devised by statutory rules as to make it a~ ideal body having all the trappings of a court.

People drawn from different corps, and voidi.ng officers of the s8JJ1e corps coniposing the geaeJ;"al court martial, would ensure an objective unbiased body. This is achieved by giving the expre$sion :•corps" a .restricted meaning so as not to make it synonymous with Army Corps at the top, If a battalion or a regiment is t!eated as a 'corps' then it is easy o. provide composition of court martial in

trict compliance with rule 40. Viewed from . either angle the expression 'corps' in rule 40 is not used in the same sense in which the expression 'army corps' is used. It is used in the sense in which it is defined and elaborated in rule 187.

[422 E-H; 423 A-DJ

It is, or course, true tb'at the interpretation of rule 40 must be informed by the. underlying intendment that officers com'Posiog the court artial must be independent of command, influence or influence of superior e>fficers like the

' (1

SUPREME COURT REPORTS [198'.i) I s.c.R,

convning offi'cer.' This' depends on what meaning one must assign to a loose expression 1ike 'command influence' and 'influence of superior officers'. These expr.ession haVe. to be understvod in the context of the vertical hierarhy in the composi, tion of army. Once it transpires that the expression 'corps' in rule 40 hos the same meaning as has been set oUt in rule 187 and, therefore the battalion would be a corps and an unattached companY can l:Je a corps by itself, it becomes ' easy and pr'acticable to set up a courtn1artial in which officers 'outside the corps to which an accued belongs are enlisted and it could certainly be said to be .free from command influence. [423 EH] ·

Rule 40 by its Very language is not mandatory. This rule on 1its Own force insists on compliance with its requirements as far as may be practicable. Even with this leeway,. a strict CompliRnC<'. with the requir.:.ncnts of rule 40 must be insisted upon and the departure on the ground of practicability will, if challenged, !Jav, e to be proved within the. brod. parameters of functional adjustibility of the army requirement. Therefore, the expression 'corps in rule 40 is not synonymous with the expression 'army corps'. It must receive a restricted construction with narrow connotation as explained in rule 187 (3). [424 C-F]

Two Other-requirement which should .be complied with while setting up a general court martial are (i} that a general court-martial shall consist of not less than five officers, each. of whom has held .a commission for not less than three whole years and of whom not less than four are of the rank not below that of a Captain and (ii) that members of Court martial for trial of an officer sl:lall be of a rank not lower than ihat of the delinq\lent officer unless iu: the opinion of the convening officer., officers of such rank are not avail able. Sub-rule (3) of rule 40 merely incorporates the mandate Of section 113. [424 F-HJ .

In the instant case the general court-martial set up to f.ry the 'petitioner in Writ Petition No. 4903/81 consisted of.five officers one of whom was of a higher

-ank and the others were of coOrdinate or of equal rank. Even though all of

1 ' them belonged to the 9th Infantry Division they were drawn from different brigade:s and regiments and none of them belonged to the same corps to which the petitioner belonged and none was lower in rank than the rank held bY the petitioner~ Therefore the reQuirement of rule 40 was strictIY complied with.

[425 B-E]

In the case of the petitioner in Writ Petition No. 1513/79 the general courimartial was composed of seven officers, each of whom held a rank higher than the petitioner was nne _of them belonged tO the corps to which he belonged. There . was therefore no violation of rule 40. [425 F-H]

The petitioner in Writ Petition No. 5930/80 belonged to the 33 Army Corps. None of the qfficers composing the general courtmartial belonged to his corps nor was any of .tl:}em' lower in ank than a C_apta in. Therefore. there was nothing to show that rule 40 had been violated. [ 42~ AC]

H , When either a general, distrlcl Or summary court-martial is assembled and the acused is brought l:iefore it, section 130 enjoins that the nan1es of the

PRITHIPAL v .. UNION (Desai, J.) 397

presiding officer and the members composing the court artial be read out and the accused be asked whether he objects to his being tried by any of the officers -sitting on the court. If the accused objects to any such officer being present his objection and reply of the officer objected to shiill be heard and recorded and the remaining officers of the court shall in the abseoe; e_ Of thechaUenged officer decide the objection. This provision is elaborated iti rules 41 to 44. In order to ensure that any orie objected to does not participate i1; J° diSposing of the objection, clause (8), of the proviso .to rule 44 directs tba~ the accused should state the names of all officers constituting the court in respect of whom he has any objection. This is a mapdatory requirement because the officer objected to cannot participate in the decision disposing of the objection. It is true that if a court is not constituted,, . 'in accordance with the Act and the Rules, rule 44 would hardly assist becaUse as in such a case if the contention is that rule 40 was violated there is none left to dispose of the contention; because once such an objeciion is taken no one shall be 1

competent to decide the objection. The provision conferring the right on the accused to object to a 'meJDber of the court-martial sitting as a member and participating in the trial ensure that a charge of bias could be made and investigated against individual members col!lposing the court-martial. This is a pr~-eminently rational provision for ensuring a fair trial. In the present case however there was no allegation of bias against any individual member of the court-nlartial;

. ,

[ 426 D-H; 427 A-FJ

Rules 22 to 24 are n1andatory in respect -Of every person subject to the~ Act other .than officers. TJ:tat the requirem\, nts of these rules are not mandatory in the case bf an officer, becomes. manifestly clear from rule 25(1) which provides that where an officer is Charged with an offence under the ACt the investigatio_n shall if he requires it be held and the evidence if he so rquires it, be taken in his presence in writing in the same manner as nearly as circU:mstances .admit, as iS required by rules 22 and 23 in the case of !)ther persoi; is subject to the Act.

[432 B-C]

The petit.ioner in this ca~ being an offier, the prOcCdure prescribed in rules 22 and 23 would not, apply proprio vigore to him. If he wanted compliance with rules it was for him to have made a reqllest that the inVestigation be done in bis preseDce and that the summary of evidence be' drawn in his Prsence.

Nowhere in the petition did the petitioner specifically state that he did make such a recjuet. In the absence of such a request failure to comply with rules 22 to 24 woul.d not vitiate the trial by the generiil court ma:rtial. [432 D~E; 433 A-CJ

. Rtx v. Thomson [1946] \4 , Domiiiion Law Reports 579, held ioappJicable. ·

There is nO force in the argUment that to the Cxtent th; t the applicaiion '< of principles of nittural justice enacted in rules 22 to 24 is ma.de dependent on the demand by the officer concerned, compliance with ruICs of natural justice must be deemed to be an integral part of the procedure prescribed for a. tribunal whose decision is likely to result in deprivation of personal libert;. Parliament

ha~ the power to restrict. or abrogate any of the rights conferred by Part Ill in their app1ication to members of the Armed Force so as to ensure proper discharge of ditties and maintenance of discipline amongst them, The Army!Act is one .

SUPREME COURT REPORTS [1983] 1 s.c.R.

such law. Therefore none of the rprovisions of the Act can be struck down on the only ground that they restrict or abrogate or tend to restrict or abrogate any of the rights conferredby Part III which include Art. 21.

If the procedure estabJished by law prescribes compliance with principles of natural justice but

mkes it dependent upon a requisition by the person against whom an inquiry has to be held such procedure would not be violative of Art: 21. [434 B!'l

In the instant case the rules have made a clear distinction between an officer governed by the Act and any other person subject to the Act. T_he accused was a person belonging to the upper bracket in the Armed Forces. Although in respect Of persons belonging_ to the lower category rules 22 to 24 are mandatory, in respect of persons belonging to the upper bracket the necessary iJresumpOon is that he is a highly educated knowledgable intelligent person and compliance with thes:e rules is not obligatory. But the rules have to be complied with if the officer so requires it. This is quite rational and understandable. An officer cannot be heard to say that he would not insist upoi:i an inquiry in which he would participate and then turD. round and contend that failure to hold the inquiry in accordance with the principles ofnatural justice would invalidate the inquiry.

[434 GH; 435 AC]

Mohinder Singh Gill and Anr. v. The Chief Election Commlssioner, New Delhi & Ors., [1978] 2 S.C.R. 2i2 and Maneka Gandhi v. Union of India, [1978] 2 " S.C.R. 621 referred to. ·

Rules 22, 23 and 24 prescribe participation at a stage prior to the trial by the court martial. In a trial which is likely to result in deprivation of liberty the body which bas ultimately the power to make an order which would result in deprivation of liberty must hear the offender offering full participation. However, the procedure prescribed by these rules is at a stage anteriOr to the trial by the court-martial. It is the decision. of the court martial which would result in deprivation of liberty and not the order directing that the charge be heard or that summary of evidence be recorded or that a court martial be convened. There is therefore no substance in the contention that rules 22, 23 and 24 in view of the provision contained in rult 25, are ultra vir~'S Art. 21 of the Constiution. As failure to comply with the requirements of rules 22, 23 and 24 depended upon a requisition by the petitioner, his illaction or onlission in that behalf would have no impact on the order convening the coun martial.

(4350-H; ,436A~C]


Rule 180 cannOt be construed to mean that whenever or wherever in any enquiry in respect ot any person subject to the t his character or military

reputation is Jikely to be affected, setting up of the court of enquity is sine qua non. By its very nature the eourt of enquiry is likely to examine certain issues coocCrning a situation or persons and in the course of such enquiry there may be a distinct possibility of character or military reputation or a person subject to the Act being affected. To ensure that such person should be afforded full opportunity to participate, rule 180 merely alakes an enabling provision to ensure his participation. It cannot be used to say that whenever in any other enquiry or an enquiry before the commanding officer under lrule 22 or a convening officer undCr

1 •

' \ ..

.; •

. rRJTHiPAL v. UNION (Desai, J) 399

rule 37 of the td.al b~ the court-ma; tial in which the characteror ilitary reputa- _A tion of the officer c"lncemed is' likely to be affected, a prior enquiry by the court of enquiry is a sine qu!l non: [439 G-H; 440 A-D] /

. Absence of even one appeal with power to review evidence, legal formu .. tatlon, Conclusion and adequacy or otherwise or pui:i.ishment is a glaring iacuna in a country where a counterpart civilian convict can prefer appeal after appeal to hierarchy of courts .. The time has come when a step is required to be taken . n for at least one review and it must truly be a judicial review as and by way of ,, appeal to a body composCd-of non-military personnel or civil personnel. ·

 [441 F-G; 442 BJ

. ORIGINAL JURISDICTION Writ 'Petition-~Nos. 4903 of 1981, . 1513of1979 and 5930of1980.

C ·

' (Under Article 32 of the Constitution of India)

G.L. Sanghi, Ashok Grover and Girdhar Govind for the Petitio-. . ner in W.P. :No. 4903of1981. ~-

M.K. Banerji, Additional Solicifor General, Girish . Chandra

ad Miss A.' Subhashini for. the Resp()ndents in W, P; No. 4903/81.

•. ' •' V.M. Tarkunde, If.C. Agarwala, V.K. Pandita and P.N. Ra_mafingam for the Petitioners in \V.P. Nos. 1513/?9 & 5930/80.

M.K. Banerji, Additional Solicitor General, Girish Chandra and Miss A. Subhashini for the Respondents in W.P. Nos. 1513/79 &

5930/80. '~ .

. F

The Judgment of the Court was_ delivered by

DESAI. J. Validity and legality of an order made _again&! each petitioner convening General Court Martial to try each petitioner in •respect of the charges framed against each of them is questioned. on diverse grounds but principally the composition in each of these petitions under Article 32 of the Constitution. In Writ Petition No. 4903/81 the petitioner has also challenged the constittional validity of rules 22, 23, 25 and 40 of tl:ie Army Rules, 1954 {'Rules' for short) as being violative of.the fundamental rights of the peti tioner .guaranteed under Articles/14 and 21 of the Constitution. - AS certain contentions were comon .to all the three petitions they were

' ' .

. •.

400 SUPREME COUF.T REPOll.TS

[1983) 1 S, C, R.

A heard together and are being disposed of by this common judgment.

Facts alleged on which legal formulations were founded may be briefly set out in respect of each petitioner. ·

Re : Writ Petitfon No. 4903/81 :

Petitioner Lt Col. Prithipal Singh Bedi was granted permanent regular commission in the Regiment of Artillery in 1958 and in course of his service he came to be• promoted as Captain, then as Major and at the relevant time he was holding the rank of Lt. Colonel and in that capacity he was designated as Commanding Officer, 226, Medium Regiment of 43 Artillery Brigade. As part of his duty he had to write interim confidential reports of five officers of the rank of Major subordinate to him. One Major R. S. Sehgal was ope of the suordinate officers whose interim confidential report was written by the petitioner. Under the relevant rules the officer whose confidential report is written by his superior has to be shown the confidential report and in token of his having seen the same his . signature is to be obtained, .the purpose underlying this procodure being that the attention of the subordinate officer is drawn to the counseJling remark in the confidential report which may encourage him to remedy the defect pointed out and to improve in his efficiency.

The confidential reports prepared by' the petitioner were to be reviewed by the Brigadier. It is alleged that Brig ..

N. Sondhi, A VSM who held the office of the . Brigadier and under whom the petitioner was working as Lt. Colonel at the time of writing reports had already been transferred on January 8,. 1980 and therefore, the confidential reports submitted by the petitioner were required to be reviewed by the officer who occupied the office of Brigadier consequent upon the transfer of Brig.

N. Sondhi. It is admitted that petitioner had also received his order of transfer datd' February 6, 1980 but he left the charge on February 26, 1980, after co; npleting the formality of handing over charge and also writing the interim confidential reports . which he was bound to complete before proceeding on transfer. It is . alleged tliat Major R.S. Sehgal in respect of whom petitioner wrote the confidential report on February 20, 1980, which contained a counsellipg remark advers.e to the officer was a near relation of Brig.

N. Soridhi. It is further alleged that even though Brig. Sondhi had already been transferred and had left charge, yet on February 25,1980, the confidential reports were forwarded by the Headqu,, rters 43

PRITHIPAL v. UNION (Desai, J.) 401

Artillery Brigade to Brig.· Sondhi for reviewing the same. While so reviewing the confidential reports, Brig. Sondhi . addressed a query with respect. to the last sen.tence in para 27 in the confidential report of Major Sehgal; "that the last sentence appears to have been written possibly at a different time. It is suggested that a confirmation may be asked for from the fficer as to whether he was aware of the complete para prior to signing. The ICR may thereafter be returned for onward despatch". Suspicion underlying. this query is that adverse entry reflected in the last sentence of para 27 was interpolated after the confiential report was signed by Major Sehgal. The auspicion arose OD• the Visual impression that : (a) there is Change in ink of last line; (b) last line appears to have been written .over the signature of the officer reported upon ; ( c) size of lettering of the .last line is smaller than the rest of the para.

It may be mentioned that ultilllately this alleged interpolation in the interim confidetial . report after the same having been initialled by the officer reported upon is the gravamen of the charge under s.ection 45 of the Army Act on which the petitioner is called upon to face a trial by the General Court Mart, ial convened under the impUg'ned order dated April II, 1981.

Re: Writ Petition No.1513/79: .

. The first petitioner Captain Dha, rampal Knkrety and Petit.lfper 2 Naik Bhanwar Singh were both attached , at the relevant time to 2 Rajput Regiment but since the order to try t!iem before a General Court Martial both of them are attached to 237 Engineer Regiment of 25 Infantry Division which is a part of the 16th Corps of the Indian Army. Petitioner I was promoted as Acting Major but because of the direction to try him before a Court Martial he has been reverted to the substantive rank of Captain. Petitioner 2 holds the substantive rank of Naik. In 'the. year .1978 one Lt. Col. S. N.

Verma was the Commanding Office~ of the 2 Rajput Regiment and 'the !st petitioner was directly under him being secon'd in command.

One Major V.K. Singh belonging to the 2 Rjput Regimenf was a Company Commander under Lt. Col.

Verma. He applied for casual leave for seven days and Lt. Col. Verma granted. the same.

In the meantime on October .14, 1978, Lt: Col. Verma proceeded on leave. First petitioMr being the second in command was. officiating Commandi.ng Officer when Lt. Col. Verma proceeded on leave. On October 16, 1978, the !st petitioner informed Ml'jor V.K. Siniih

SUPREME COURT REPORTS [1983] 1 s.c.R.

that he could proceed on leave with effect from October, 17, 1978; for a period of seven days. Major V.K. Singh, however, overstayed his leave and returned after lO days. Petitioner contends that he being a strict disciplinarian, he did not approve of the default of Major Singh and, therefore, he reported the matter to Lt. Col. • Verma on his return from leave who in turn asked the !st petitioner tci make investigation and submit report. On tlje I st petitioner making the report, Lt. Col. S.N. Verma ordered abstract of e'idence to be recorded by framing some charge against Major V.K. Singh.

The iillegation is that the father-in-law of Major V.K. Singh is Deputy Speaker of Haryana State Legislative Assembly and a man of powerful political influence who appears to have contacted third respondent Lt. General Gurbachan Singh to assist his son-in-law Major V.K. Singh. It is alleged that when Major V.K. Singh was produced before 7th respondent Brigadier P.N. Kacker, the latter appeared reluctant to proceed against Major V.K. Singh. First petitioner sought an interview with 7th respondent and insisted that disciplinary action should be initiated against Major V.K. Singh.· First petitioner sought an iterview with 5th respondent on December 161 1978. Major V.K. Singh was awarded 'displeasure' which appears to have infuriated the first petitioner because according to him punishment was disproportionately low compared to default; It is alleged that 5th respondent suggested th>1t !st petitioner be put

oi\FMS-10 for psychiatric investigation. !st petitioner sought

a't'Mtchment to other unit, certain very untoward incidents followed whicl, l are detailed in the report of Court of Inquiry set up for ascertaining the fact.s which are not necessary to be detailed here. !st petitioner !1as set out in his petition chronology of events leading to his being charge-sheeted. Ultimately, an order was made to try him by a General Court Martial and. a General Court Martial was convened as per the. order dated October 7, 1979. The legality and validity of the order constituting the General Court Martial is impugned in this ?ehtion.

G Re : Writ Petition No. 5930/80

.Petitioner Captain Chander Kumar Chopra joined the Army as 2nd Lieutanant on January 12, 1969, and in course of time came to be promoted as Captain and at the relevant time he belonged to,

877 At BN. ASC under 20 Mountain Division which is one of the Divisions in 33 Corps. Petitioner was second-in-command. On February 12, 1979, the petitioner sought a persoi:rnl interview with

PRITHIPAL v. UNION (Desai, J.) 403

CO Lt. Col. R.M. Bajaj to report against Major S.K. Malhotra for the irregularities committed in the Company disclosing misappropriation of funds, pilferage of petrol and stores, furnishing of false -i. information and certificates in official documents resulting in loss to the State, misuse of transport and misuse of power and property.

As Lt. Col. Bajaj did not possibly take any action on this report, the petitioner oil March 7, 1979, submitted an application to the Chief of Staff, Headquarters, 33 Corps c/o 99 APO to brillg to the notice of Chief of Staff the irregularities going on in 'A' Coy. 877 , , AT BN ASC and seeking an interview at an early date. The petitioner's request for a personal interview was turned down where- ' upon the petitioner made an application for casu.al leave for 13 days w.e.f. February 26, 1979, which appears not to have been granted.

''1111111. On March 16, 1979, the petitioner was summoned by Lt. Col. Bajaj,

,.. at his residence and he was assured that justice would be done but . the petitioner should cancel the letter dated Marh 7, 19.79, and surrender .the demi official letter addressed to Coy. 33 Corps in the ) interest and name of the Unit. Thereafter the petitioner Wl\S taken to office by Lt. Col. Bajaj and it is alleged that under pressure, letter dated March 16, 1979, written in, the petitioner's own hand as dict.ated by Lt. Col. Bajaj was taken and at the same time a number of certificates were also taken from the -petitioner. A Court of Inquiry was set up to inquire into the allegations made against Major Malhotra by the petitioner. The Court of inquiry commenced "' investigation on August 27, 1979. The petitioner submitted a request > to summon 15 witnesses to substantiate his allegation against Major Malhotra. Probably this request. did not find favour and the petitioner entertained a suspicion th.at the members constituting the Court of Inquiry were highly prejudiced against him. The Court of Inquiry submitted its report. It is not necessary to recapitulate the findings of the Court of Inquiry save and except that not only the "'"- Court of Inquiry negatived all the allegations of petitioner against '1:-Major Malhotra but on the contrary found that the petitioner had taken some store items unauthrisedly on January 30, 1979, which were returned'on January 31, 1979 Pursuant to the findings .or the Court Of Inquiry a charge-sheet was drawn up again.st the petitioner for having committed offences under sections 52 (b), 56~ (a) and 63

- of the Act. Dire.ction was given for recording summary of evidence.

Subsequently the impugned order convening the General Court Martial was, issued., The peiitionerthereupon filed :the present ... ,; petition. ·

SUPREME COURT REPORTS (1983] 1 s.c.R.

In each petition legality and validity of the order convening the General Court Martial more particularly the composition of the Court Martial in respect of each petitioner is questioned. The challenge up to a point proceeds on grounds common to all the three petitios and they IJViY be dealt with first. f

The contention is that the Constitution of General Court Martial in each case is illegal and contrary to rule 40 and, therefore " the order constituting the General Court. Martial in each case must be. quashed.

The 'web of argument is woven round the true construction and intendme.nt underlying rule 40.. It was said 'that the grammatical construction must accord with .the un(lerlying intendment of rule 40 and that the approach must be informed by the expanding , jurisprudence and widening horizon of the subject of personal libertyin Art. 21 because in the absence of Art. 33 the procedure prescribed for tri.al by the General Court Martial under the Act would have

been violative of Art. 21. A pp roach, it was >nged, must be to ptit such liberal construction on rule 40 as to sub-serve the mandate of

' Art. 21.

Army, with its total commitment to national independence against foreign .invasion must equally. be assured the prized liberty of individual member against. unjust encroachment. It was said that the court should strike a just balance between military discipline and indivic!µal personal libetry.

And door must not be bolted against principles of Natural justice even iri respect of Army tribunal.

An unnatural distinction or differentiation between a civilian offender and an offender subject to the Act would be destructi_ve of the cherished principle of equality, the dazzling light of the Constitution which illumines all other provisions.

The dominant purpose in construing a statute is to ascertain the intention of the Parliament. One of the well recognised canons of construction. is that the legislature speaks its mind by use of correct expression and unless there i~ any ambiguity in the Japguage

of the provision the Court should adopt literal construction if it does not lead to an absurdity. The first question to be posed is whether there is any ambiguity in the language used in R11le 40. If there is none, it would mean the language used, speaks the mind 'or Parliament and ; there is no need to look SOJ!lewhere elese discover

\he intention or !lleatiing. If the 'literal co11structio11 leads to' an

,,.

PRITWPAL v. UNION (Desai, J.) 405

_absurdity, external aids to construction can be. resorted to. To ascertain the literal ineaning it is equally necessary l)rst to ascertain , the juxtaposition in which th~ rule is placed, the purpose for which -1 it is enacted and the object which it is required to' subserve and the authority by which the rule is framed.. This necessitates examination of the broad features of the Act.

The Act'as its long tille would show was enacted to consoli- ,. date and amend the law relating to the governance of the regular Army and.ii came into force on July 22, 1950. Section 2 sets out

~ the persons subject to the Act.

Sctiqn 3 provides the. dictionary. clause. Sub-section (2) of section 3 definces, 'civil offence' to mean ..... an offence which is triable by a criminal court; Expression 'corps' is defined in section 3 (vi) to mean any separate body of perons subject to' the Act which is prescribed as a corps for the purpose of all or any of the proVisfons of the Act. 'Department' has been defined in

~ placitium

(ix) to include any divJsion. or branch of a department.

Chapter III deals with the commission; appointment andenrolment of Army personnel. Chapter IV seis out the statutory conditions of service and Chapter V deals with service privileges.

Chapter VI. sets out various offences made punishable by the Act. Section 69 provides. that subject to the provisions of section 70 any person subject to, the Act who at any place in or beyond India commits any civil offence shall be deemed to 'be guilty of an offence _against the > Act and if ch.arge.d therewith under the, section, shail be liable to be •

tried by a court-martial and, on conviction, be punishable in the manner therein prescribed,. This .provision would show' that if any person subject to the -Act commits any o!fence triable by ordinary criminal court which for the purpose of the Act 'would be a civil

~ - offence, is liable to.be tried for the same, though not an offence

~ u. oder the. Act, by the court martial and be punisha.ble in the manner

'"-prescribed in. section 69.

Section 70 carves out an exception in respect of certain civil offences which cannot be tried by a court ' martial. In view of the provision prescribed i, n section 69, a situation is bound to arise where an ordinary . criminal court and the court martial both will have jurisdiction to try a person for having committee a certain: civil offence. .To avoid cnnfiict of juris: diction, section 125 is en.acted conferring a discretion on rhe officer . commanding the ai:my, army corps, division: or independent brigade .;. in which the accused person is serving or such other officer as may . be prescribed to decide_ before which court the proceeding shall be

• c

f-{

SUPREME COIJRT REPORTS [1983] I s.c.lt

instituted and if that officer decides that it should be instituted befor~ a court-martial, to direct that the accused person shall be detained in' military custody. Section 126 confers power on the criminal court to require the officer who has decided to nse his discretion in favour of couri-martial under section 125, to deliver the accused to the nearest roagistrate to be proceeded against according to law; or he may direct the officer to potpone proceedings pending a reference to the Central Governinent. . On such a reference being made, the Central Government will l:tave power to determine whether the per son should be tried by an ordinary criminal court or by a Court Martial and the decision'of th6 Central Government in this behalf is rendered final. A successive tiral by a court-martial and the ordinary criminal court is distinctly possible in view of the provision contained in section 127. Chapter VU sets out the various punishments which can be imposed under the' Act., Chapter VIII deals with penal deductions that can be made from the, pay and allowances of an officer.

Chapter IX provides for arresl: and proceedings before trial. Section 108 in Chapter X provides that there shall be four kinds of court martial': (a) general courts-martial; (b) district courts-martial; (c) summary general courts-martial; and (d) summary courts-martial.

Section 109 to 112 confer power on various authorities to convene one or dther kind of courtmartial. Section 113 provides for com position of General Court-Martial and Ii may be extracted :

"113. A general court-'martlal shall consist of not Jess than five officers, each of whom has held a commission for not less than three whole years and of whom not less than four are of a rank not below that of captain."

Section 118 confers power on general or summary general court martial to try any person subject to the Act fot any offence punishable therein and to pass any sentence authorised thereunder. Chapter XI prescribes procedure of court-martial. Sec. 129 provides that every court-martial shall, and every district or summary general court martial may, be attended by a judge-advocate, who shall be either an officer belonging to the department of the Judge-Advocate General, or any of his deputies. Section 130 of the Act is important and it may be extracted :

"130. (I) At all trials by general, district or summary general court-martial, as soon as the court is assembled, 'the names of the presiding officer and members shall be read

•• -.'

I '

"" ·-

PRITlllPAL v. UNION (Desai, J.)

'over to the accused, who shall thereupon be asked whether he objects to being tried by any officer sitting on the court.

1 (2) .If .the accused objects to any such officer, his objection and also the reply thereto of the officer objected

to, shall be heard end recorded, and the remaining officers B of the court shall, in the absence of the. challenged officer decide.on the objection.

(3) If the objection is allowed by one-half or more the. votes of the officers entitled to vote, the objectio~ shall be allowed, and the member objected to shall retire, and his vacancy may be filled in the prescribed manner by another officer subject to the same right of the accused to object.

(4) When no challenge is made, or when challenge has has been made and. disallowed, or the place of every officer successfully challenged bas been filled by another officer to whom no objection is made oi allowed, the court shall proceed with the trial." ·

Section 133 provides that the Indian Evidence Act, 1872, shall, .subject to the provisions of the Act, apply to all proceedings before a • court-martial. Chapter XII provides for confirmation of the finding and sentence and revision thereof. Chapter XIII deals with the execution of enience awarqed by court-martial.. Chapter X!Vdeals ' with pardons, remissions d~ su-spei; isions ot sen.tence.

Section 191 in Chapter XV confers power to make rules for the purpose of carrying into effect the provisions of the Act and without prejudice to the generality of the power so conferred by sub-section(!), the rules , made inter a7tti may provide for convening and constituting"of court- . martial and the appointment of prosecutors at trials •by courts-martial adjournment, dissolution. and sitting of court-martial and the procedure t.o be observed in trials by courts-martial and the appearance oflegai practitioners threat. ·- ' ' Armed with these powers Army Rules 1954 have been framed.

To begin with, the Rules in Chapter V may be noticed. Rule 22 prescribes procedure for headng of charge at a 'stage anterior to the convening of. • court-martilll.

After_ this prelimina_ry hearing

40$ SUPRBMil COURT REPORTS (1983] I s.c.il.

of the charge, if further act}on is contemplated, rule 23 prel!Cl'ibes procedure for . recording summary of evidence. After recording summary of evidence rule 24 enables the Co!'lmanding Officer either to remand the accused for trial by a court-martial or refer the case to the proper superior military authority 'or if he thinks it desirable~ re-hear the case and either dismiss the charge or dispose of it summarily.

Rule 25 provides procedure fot inquiry of charge against an

offier, the salient feature of it is that the procedure prescribed in rule 22 and 23 is required to be followed in the case of an officer if he so requires.

Rule 28 sets out the general format of charge-sheet and rule 30 prescribes contents of charges. Rule 33 enacts detailed provisions for preparation for defence by the accused which amongst others confer a right on the accused . person to interview any witness he wishes to call for his defence arid an i:mbargo on censoring his corres- . pondence with liis legal advisers as also a prohibition on interviewing the witnesses whom the accused wishes to call in his defence. Rule 34 provides for assistance to the. accused to summon his witnesses.

Rule 37 provides for convening of general and district courtscmartial.

Rule 37(1) and (2) were relied upon in support of a submission by Mr. Sanghi, which providesthai the cOJ;1vening officer before convening.court martial has to satisfy h.imself that the charges to be tried by the court are for offellces within the meaning of the Act and that the evidence justifies a trial of those charges and if not so satisfied, he is entitled to order the release of the accused or refer the cas_e to the superior military authority.

Rule 41 prov.ides that on the Court assebling, the order convening the court shall be laid before it together with the charge-sheet and the summary of evidence or a irue copy thereof and also names, ranks .and corps of the officers appointed to serve on the Court. A duty is cast on .the court to satisfy itself that il is legally constituted and one such duty being tliat the court, as far-as it can ascertain, shall satisfy itself.that it has been convened in accordance with the provisions of the Act and the Rules and that each of the officer composing the court-niartial is eligible andnot disqualified for serving on that court"martial and further in case of a general court-martial, the officers are of the required rank.

After the court bas satisfied itself about its constitution, it shall cause the accused to be brought before it as provided in rule 43. Rule .44 enables the accused as required by section 130 ofthe Act to state whether he Joas any objec-

- ....

. PRtriIIPAi. v. UNION (Desai, j) 409

tion to be tri.ed by any officer sitting on the Court. A detailed pro- .ced_ure is prescribed.for disposing of the objection. Elaborate trial'

prncedure is prescribed in the event the accused pleads not guilty and barring minor situational variants the procedure prescribed is analogous to the one prescribed in the Code of Criminal Procedure for trial of an accused by the Court of Sessions.

A reference _to rule 95 is advantageous. It enables an accused person to be represented by any person subject to \he Act who shall be called the defending - officer or assisted by any person whose services he may be able to procure and who shall be called the friend of the accused. _Rule 96 confers power subject to the Rules on, the Chief of the Army

Staff to permit counsel to appear on behalf of the prosecutor and the accused at general and district courts-martial if the Chief of the - C' Army Staff or the convening officer CleClarcs that it is expedient to allow the appearance of:counsel thereat, and such declaration may be _ made as regards all general and district court; martial held ; at any particular place, or as regards any particular general or district point martial, and may be made subject to such reservation as .to cases on active service, or otherwise, as seems expedient. In case of a general, court'martial where it is obligatory to assciate a Judge-Advocate, rule 105 provides for powers duties and obligations of the Judge-

' ' Advocate; one such being that both the prosecutor and theaccused are entitled to his opinion on any question of law relating to the charge or trial. ·, Rule 177 provides for setting .upof a Court of 'Inquiry its composition and .the subsequent rules provide for the procedure to be followed by a Court of Inquiry. Rufo 180. provides that whenever an inquiry affects the character or military reputation . of a person subject to the Act, full opportunity must.be afforded to such person of being preent throughout the inquiry,- and of making any statement and of giving any evidence he may wish to make or give and of cross-examining any witness whose evidence in his opinion affects his character or. military reputation .and producing any witnesses' in defence ofhis character or military reputation. This rule was relied on by Mr. Sanghi to urge that whenever ch_aracter or

militar1 reputation of a person subject to the Act is involved it is obligatory to set up a Court of Inquiry, On a plain reading of rule

180, the submission .is without merits but that would" come later. Rule 187 has reference to s. 3(vl}. It

0 prcribes that bodies of persons subject to the Act are to be treated a 'Corps' for the purpose of ,, Chapter III and s. 43(a) . of the Act aud Chapters II and III of the Rules.

' '

- 'c

410 SUPREME COURT REpORTS (19&3} l s.c.R.

At this stage it would be profitable to refer to Article 33 of the Constitution which reads as under :·

.• "33. Power to Parliament to modify the rights conferred by this Part in their application to forces : Parliament

may by law determine to what extend an~ the rights conferred l>Y this Part shall, in their application to the members of the Armed Forces or the Forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties, and the maintenance of discipline among them."

Chapter IV in the Rules specifies restrictions on the fundamenal .rights. Rule 19 prescribes restrictions on the fundamental freedom under Art. 19(1) (c), to wit, to form associations or unions. 'similarly rules 20 and 21 prescribe restrictions on the freedom of speech and expression guaranteed under Art. 19(1) (a).

No contention was advanced before us in respect of restrictions pr, e'scribed by rules 19, 20 and 21 "on the freedom of speech. and expression and the freedom of forming associations and unions, The contention was that a trial by a court-martial would result in deprivation of personal liberty and it can only be done in view of Art. 21, by procedure established by law arid the law prescribing such .procedure must satisfy the test prescribed by Arts: 14 and 19. It was contended that in view of the decision in Maneka Gandhi v. Union a/India(') . . the law to satisfy the test of Art. 21 must be just, fair and reasonable and if the procedure prescribed by the Code of Criminal procedure for trial of offences is just, fair an.d reasonable, any deviation therefrom in the. procedure prescribed for trial by court-martial would' neithe~ be just, fair nor ·.reasonable and it would be violative of Art. 21. The question really is, bow far this contention about violation of Art. 21 is available in view of the provision contained in Art. 33. The contention is that "ill' order to satisfy the requirement of Att. 33, Parliament must enact a specific law specifying therein the modification of the rights conferred by Pa'rt III and that a restrction or abrogation of fundamental rights. cannot be left to be deduced or determined by implication. In other words, the submission is that the law to satisfy the requirement of Art. 33 must be

a specific law enacted by Parliament in which a specific provisio!l

(IJ [1978] 2 SCR 621.

• •

PRITHIPAL v. UNION (Desai, J.) 411

imposing restriction or even abrogation of fundmental rights should be mad.e and wlien such provisions are debated by the Parliament it 'would be clear as to how far restriction is imposed by Parliament on the fundamental rights enacted in Part III in their' application .to the members of the Armed Forces or the forces charged with the maintenance of public order. Submission is that. a conscious and deliberate Act of Parliament may permit erosion of fundamental rights in their application to Armed Forces. Such a serious inroad on fundamental rights cannot be left to Central Government to be done by delegated legislation. Article 33 permits Parliament by law to not'merely restrict but abrogate thefon.damental rights enacted, in Part III in their application to the members of Armed Forces.

The act was enacted in 1950 and. was brought irito force on July, . 1950. Thus theAct was enacted after the Constitution came into force on January 26, 1950. When power to legislate is conferred by Constitution, and Parliament enacts a legislation, normal inference is that the legislation is enacted fo exercise of legislative power and legislative .craftmanship diies no.t necessitate specifying the powers Since the Constitution came into force, Parliament presumably was aware that its . power to legislate must be referable to Constitution and therefore it would be subject to the limitation prescribed by the Constitution. Whenever a legislation is being debated for being put on the statute book, Arts. 12 and 13 must be staring into the face of that body.

Consequently when the Act was enacted not only Arts. 12 and 13 were sovering ov.er th~ provisions but also Art.· 33 which to some exteni carves out an exception to Arts. 12 and 13 must be present to the corporate mind of Parliament which would iply that Parliament by law can restrict or abrogate fundamental rights set out in part III in their application to Armed Forces. But it was said that by contemporane expositio Section 21 of the Act clearly sets out the limits of such restriction or abrogation and no more.

Section . 21confers power on the Central Governmentto' make rules restricting to such extent and in such .manner as may' be necessary to modify the fundamental freedom conferred by Art. 19( l) (a) and

(c) in their application to Armed Forces and none other meaning that Armed forces would enjoy other fundamental freedoms set out in part III. Armed with this power, rules 12, 20 & 21 havebeen framed by the Central Government.

Taking cue from Sec. 21 and Rules 19,. 20 and.21, it was submitted that while Art. .33 enables the P!irliament by law to abrogate or restrict f11ngamental rights in their

SUPREME COURT REPRTS

[J983j J S.C.R.

application to Armed Forces, Parliament exercised the same power limited to what is prescribed in Sec. 21 and specified the restrictions in rules 19, 20 and 21 and" therefore; the remaining fun\ia: mental rights in Part Iii are neither 'abrogated nor restricted in their application to the Armed Forces. Consequently it was urged that the Act prescribing the procedure of court-martial must satisfy the

requiremnt of Art. 21.

While investigating and precisely ascertaining 'the limits of inroads or encroachments made by legislation enacted in exercise of power conferred by Art. 33, on the guaranteed fundamental rights to all citizens of this country without distinction, in respect of armed personnel, the 'court should be vigilant to hold the balance

btween two conflicting public interests; namely necessity of discipline in armed personnel to preserve national security at any cost, because that itself would ensure enjoyment of fundamental rights by others, and the denial to those responsible for national security of these very fundamental rights which are. inseperable adjuncts of civilised life.

Article 33 confers power on the Parliament to determine to what extent any of the rights conferred by. part III shall. in their application to the members of the Armed Forces, be restricted or abrogated so as to ensure the proper discharge of duties and maintenance of.discipline amongst them. Article 33 does not obligate that Parliament must specifically adumberate each fundamental right enshrined in' part III and to specify in the law enacted in exercise of the power conferred by Art. 33 the degree of restriction or total abrogation of each right. That would be reading_ into Article 33 a requirement which it does not enjoin. In fact, after the Constitution came into force, the power to legislate iii respect of any item must be referrable to an entry in the relevant list. Entry 2 in list I : Naval, Military and Air Force and any other Armed Forces of the Union, would enable Parliament to enact the Army Act and armed with this power the Act was enacted , in July, 1950.

It has lo be enacted by the Parliament subject to the requirements of part III of the Constitution read with Article 33 which itself forms part of part . III. Therefore, every provisionof the Army Act enacted by the

Parliament, if in co.nflict with the fundanienial rights conferred by Part III, shall have to be read subject to Art. 33 as being enacted with a view to either restricting or abrogating other fundamental rights to the extent of inconsistency or repugnancy between !'art HI

. PlllTHIPAI. V. UNION (Desai, J.) 413

-of the Constitution and the Army Act. This is no more res integra in view of the decision of the Constitution Bench of this Court in Rm Sarup v. Union of India & Another(') in which re.pelling. the contention that the . restriction or abrogation of -the fundamental rights in exercise of the power conferred by Art. 33 is limited to one set out in sec. 21. of the Act,, this Court observed as under.:· ·

"The leaned Attorney:General has urged that the entire Act has been enacted by Parliament and if any of the _provisions of the Act is not consistent with the provision~ of any of the articles jn Part III of the Constitution,· it must be taken that to the e_xtent of the inconsistency Parliament had modified the fundamental rights under those articles in their application to _the person subject to that Act.' Any such provision in the Act is as much law as the entire Act.

We agree that each and every provision of the Act is.a law made by Parliament and that if any such provision tends to eileci the fundamental rights-under Part III of the. Constitution, that provision does not, on that . account, become oid, as it must be ta1!_en that Parliament . has thereby in the exercise of its power under Art. 33 of the Constitution made the requisite modification to affect the respective fundamental rights.'!

S_ection 21 merelr confers an additional power to modify rights conferred by Art. -i9(1) (a} and (c) by Rules and such rules inay set out the limits of restriction. But the specific provision does not derogaie from the generality of power conferred by Art. 33.

Therefore, it is not possible to accept the submission that the law prescribing procedure for trial of offences by court martial must satisfy the requirement of Art. 21 because to the extent the procedure is prescribed by law and if it stifnds in aerogation of Art. 21, to. that extent Art. 21 in its application to the Armed -Forces is modified by enactment of the procedure in the Army Act itself. ' - .

Incidentally a reference was made to Valbir Singh v. State of Punjab(') but it hardly illuminates the contours of controversy. The contention raised was ihat section 3 of the PEPSU Police (Incitement to disaffection) Act, 1953, was violative. of Article 19(1)· (a) and was

(I) [1964] S S.C.R. 931.

(2) (1962] 2 Suppl. 3 SCR 2s,

H_.·

. '

SUPRBMB COURT REPORTS

[ 1983] I S.C.R.

not saved by Art. 19(2). Repelling this contention a Constitution Bench of this Court held that the Police service is an arm of the State charged with the duty of ensuring and maintaining pub!ic order and since any breach of difil)ipline on the part of its members might result in a threat to public order, section 3 must be held, to be valid as having been enacted in the interest of public order within the meaning of Art. 19(2). Attempt was made to urge that as the Act in question was made by the President under Art. 356 of the Cons. titution it would be an Act of Parliament in exercise of the power conferred, by Art. 33 and as the police force would be one uch force as contemplate~ by Art. 33 charged with the maintenance of public order, the provisions of the Act would be beyond the challenge of Part III of the Constitution. This contention was negatived on the ground that Art. 33 was not applicable· because parliament had delegated the powers of State legislature to the President and, there fore, any law enacted by the President in exercise of this power wculd not have the force of Parliamenfary legislation contemplated by Art. 33.

But this is hardly of any assistance. In Lt. Col. M. L.

Kohli v. Union af India & Ors.(1) the petitioner challenged certain provisions of the Army Act' and it was contended that Art. 33 does

not cover ex-servicemen who are not serving members of the defence forces.

In fact, at the hearing of the petition the contel}tion was • withdrawn and, therefore, it is noi necessary to examine this deci sion any further.

Mr. Tarkunde, however, contended that the observations of the.Constitution Bench in Ram Sarup's case in respect 0f the provisions of the Act having been enacted by the Parliament in exercise of powers conferred by Art. 33 and that each and every provision of the Act is a law m11de by Parliament and if any such provision tends to affect the fundamental rights under Part III of the Constitution, that provision does not, on that account become void as it must be taken that Parliament has in exercise of its power under Art. 33 of the Constitution made t.he requisite modification to affect the respective fundamental rights, are obiter. Proceeding along tjiis he it was submitted that the contention

before the Constitution Bench was that Art. 22 of the Constitution conferred a fundamental right on a person accused of n offence to be defended by a lawyer of his own choice, the denial of thi.s right to

(I) AIR 1975 612,

. '

PRITHl".AL v. UNION (Desai. J.)

41S

the accused would be violative of Art.. 22 and the. trial would be vitiated. It is true that this contention was repelled, on the facts found, namely, that the p.etitioner made no request for being represented at the court martial by a counsel of his own choice.

Rule 96 _ "/ of the Rules provides that subject to the Rules, counsel shall be allowed to appear on behalf of the prosecutor and accused at general and district courts-martial if the Chief of the Army Staff

or the convening officer declares that it is expedient to allow the appearance of counsel thereat anddeclaration may be made as regards any particular general or district court-martial held i.n a particular place etc. The question of validity of this Rule was kept open. Frankly, there is some force in the contention of Mr.

Tarknnde that once hav\ng found ihat the accused in that case made no request for being defended by a lawyer of his choice he could not be heard to complain of contravention or violation of the iight under Art. 22/and, therefore, the qu 0 ·:ion whether the whole of the Act

was enacted in exercise of the power conferred by Art. 33 did not specifically arise.· However, a contention was specifically canvassed before the Constitution Bench by the learned Attorney-General that cou.rt niay proceed on the basis that the request as claimed on behalf of the accusd in that case was made and turned down and. yet the accused could n.ot in that case complain of contravention of Art. 22 ' of the Constitution and this contention was in terms answered.

If in this context the observation can be said .to be obiter, it is

nonetheles entitled to respect at our hands.

. It was, however, contended that the question as to the validity of the Rules enacted in exercise of the power conferred by section • 191 having been kept open, this Court must examine the cqntention

afresh.· It was urged that what Art. 33 protects is an Act made by y the parliament and not subordinate legislation such as the Rules and the regulaiions.

Sectio11 191 confers power Otl the Central Government to make rules for the purposes of carrying into effect the provisions of the Act. Section 192 confers power on the Central Government to make regulations for all or any' of the purpose's of

- the Act. otherthan those specified ins .. 191. Section 193 provides G that all Rules and Regulations made under the Act shall be published in the official gazette and on. such pu bliCation shall have effect as if enacted in the Act. What character 'the rules and the regulations acquire when a deeming fiction is enacted that if enacted in accordance with the procedure prescribed they shall have effect

. H as if enacted in the Act meaning thereby that they are to. be treated . as .part and parcel' of the enactment itself? In the Chief Inspector

' F

SUPREME COURT REPORTS [1983) 1 s.c.R:

of Mines & Anr. v. Lala Karam Chand Thapar etc.,(1) a Constitution Bench of this Court examined the position of rules or regµlations made under an Act having the effect as if enacted in the Act.

After examining various foreign decisions, the Court held as under :

"The true.position appears to be that the .rules and regulations do not loose their characte~ as rules and regulations, even though they are to be of the same effect as if contained in the Ac.t.

They continue to be rules subordi-- . nate to the Act, and though for certain purposes, including the purpose of construction, they are to be -treated as if contai.ned in the Act, their true'nature as 'subordinate rule is not lost."

The same question came up/ L:fcre a Constitutiion Bench in Kali Pada Chowdhury v. Union OJ l,. !ia,(2) and the majority has almost accepted the same view.

, The effect of the expression 'as if enacted in this Act' has occasionally presented difficulty arising from the context in which \ t_be expression is used, If the expression were to mean th.at the . rules or regulations enactea or framed in exercise of the power to enact subordinate legislation having the same force as the provisio.ns of the statute which enables the subordinate legislation to be enacted, a question is bound to arise whether, if the provisions of the statute are not open to question the suoordinate legislation would also be

immune from the challenge to its validity.

In Institute of Patent Agents v. Lockwood,(') Lord Harschell was of the. opinion that the expression 'as if enacted tn this Act' wotild.render .the subordinate legislation as completely exempt from judicial review as the statute itself.

However, in R. v. Minister of Health, ex-parte Yajfe,(4) there was some disinclination to accept Lord Herschell's opinion at least to its fullest extent.

While distinguishing Lockwood's case a note was taken of the fact that the rules framed in exercise of the power conferred by s. IOI (3). of the Paten!s, Designs and Trade Maks Acts of !883 and 1888 would be subject to control of Parliament and, therefore; Parliament was in controlof the rules for 40 days after they were passed and could have annulled them on a motion to

(1) [1962].1 S.C.R. 9@ 20 ..


(3) [1894] A.C. : 47.

(4) [1931] 2 A.C. 494.

' )

...

./ }

'.PRITHI PAL v. UNION (Desai J.) 417

that effect, and that would permit an inference that they ha.d/same

strength and validity as the /provisions of the. statute itself.

Distinguishing this position in Yaj]e's case it was noticed that . there was no parlil), mentary manner of dealing with the confirmation. of the scheme by the Ministry, of Health' 'and,· therefore, it cannot have the same efficacy and validity as the provisions of the statute.

Subsequently, in Miller v. Bootham,(1) the conflict between the view of Lord Harsch all in Lockwood's case - and the view of Lord Dunedin in Yaffe' s case was notfoed but it ·was held to have no impact in that case because power was reserved with. the Secretary of State in the later factories Act of 193?° to bring the earlier regtiiation in conformity with th.e intendment of the Act. It would, however, appear that this ancient formula often resorted to, to

clothe subordinate legislation with the force of the provisfons of the statute would require further consideration. It is, however, not necessary to conclude-this. point because the primary contention was about the non-compliance with rules rath.er than .with their validity •

_ Rule 40 provides for composition of. court-martial. It reads as under :

"Composition of court-martial : (I) A general court- . martial shall be composed, as far as seeins to the convening officer practicable, of officers of different corps or depart- . meats, and in no case exclusively of officers of the corps or department to which the accused belongs. ·

(2) The members of a court-martial for the. trial of an officer shall be of a rank not lower thn that 'or the officer unless; in the opinion of the convening officer, officers of

such rank are not (having due regard to the exegencies of ihe P, Ublic service) available. Such opinion shall be recorded in the convening order.

(3). in no case shall an officer below the. rank oJ . 'captain be a member of a court-martial for the trial° of a filed officer.

The power to convene the General Court Martial is conferred on the Central Government, the Chief of Army Staff or by any officer ·

empowered in this behalf by warrant of 1the Chief of Army Staff ..

(l) [1944) K.B. 337,

418 SUPIUlM¥ COURT REPORTS

[1983) 2 S, C.R.

The Officer empowered to convenena general. court-martial is designated in the rules as 'convening officer'. In the composition of court-martial there is both a positive and negative requirement to be fulfilled. The positions requirement is that it shall be composed . of officers of different corps or departments and the negative inhibition is that in any ca'se it shall not be composed exclusively of officers of the corps or departments to which the accused belongs.

Both these requirements are subject to the overriding consideration that it may be so done as far as it seems to the convening officer practicable to do so. In other words, one or the ther requirement may be given a go by if it is otherwise found not to be practicable.

Keeping aside the functional requirement of practicability of comply- '

ing with rule 40, the convening officer in ordinary circumstance should arrange the composition of the general court martial as. to include officers of different corps or departments and must avoid so composing the court-martial as to be exclilsively of officers of the corps or department to which the accused belongs. There is a further requi!ernent in sub-section (2) which will be presently examined. What constitutes Corps for the purposes of rule 40 is the bone of contention between the parties. The expression 'department' did not present any difficulty. The definition' of the expression 'department' is an inclusive definition. The expression would include any division or branch of a department. Learned Additional Soli: cit or-General stated that there is only one department in the Army and that is the department of Judge-Advocate. There is no other department. It, is not necessary to dilate on this point because it was not contended on behalf of the petitioners that the personnel of the court-martial belonged to the same department.

The expression 'corps' has been defined to mean any separate body of persons subject to the Act which is prescribed as corps for the purposes of all or any of the provisions of the Act. And 'pres- cribed' means prescribed by rules made under the Act. Rule . 187 bears the marginal note: 'Corps prescribed under section J(vi)'.

Bach or the separate bodies of persons subject to the Act set out in sub-rule (I) (a) to (y) is to be. a corps for the purposes of Chapter III and s. 43(a) of the Act and Chapters If and Ill of the Act. Subrule (3) provides that for the P, urposes of every other provisioni.e., other than -Chapter III and s. 43(a) of the Act and Chapters II and III of the Rules-each of the body of persons set out in subclauses (a) to (f) shall be deemed to be a corps. They are : (a) every battalion; (b) every company which does not form part of battalion;

PRITHJ PAL •• UNION (Desai, J.)' 419

(c) every regiment of cavalry, armoured corps or artillery: (d) _every squadron or battery which dos not form part of a regiment of cavalry, armoured corps or artillery; (e)_ every school of instruction; training centre; or regimental centre; and (f) every other separate - - unit composed wholly or partly of persons subject to the Act. To understand the full import of t!ie expressions 'battalion', 'company', 'regiment'' 'squadron' or 'battery'. it was imperative to' understand the hierarchy and vertical formations in the Army. National secu- . rity demands that op country would disclose its Army formations. But on the basis of the broad information availabfo, a chart roughly showing vertical hierarchy with horizontal equation was composed to understand the meaning of theaforementioned expressions : -

Supreme Command er

I I I - Chief of Army Staff

I I Command

I I Army Corps Army Corps

I . Division

I Brigac:re---

1 Battalion (In Infrntry)_ Regiment in Cavalry.

Division

Brigage

Battalion

- ='President of India

= Chief of Army Staff

,; GOC-IN-C Commanding Officer

Army Corps Army Corps =Lt. Gen.

Division 'Qivision =Maj. Gen!:

Brigade Brigade =Brigadier.

Battalion Battalion =Lt. col.

Company Company Company Company_ =Major (In Infantry, Battery cir Squadron in Cavalry.

President is t-he Supreme Commander of Armed Frces [See..) Article 53(2)]. Under him is the Chief of Army Staff. The Indian

Army is divided into five commands being 'Northern, CentrAI, Western, Eastern and Southern Commands. Bach area command H has under it static formation areas, sub-area, etc. and fightin9 fo~-

SUPREME COURT REPORTS [1983] I s.c.11..

mation army corps : 'for example, the Western Cmmand is said to have three army corps. Corps in this sense means army formation.

Speaking generally, each army corpl is composed of three or four divisions with an officer of the rank of Major General at its head; each division is divided into three or four Brigades, each Brigade being commanded by a: brigadier; each Brigade is composed of three or four battalions so designated in the case of

Infantry and Regiment in the case of Cavalry or its modern equivalent; each battalion or regiment being commanded by an officer of the rank of Lt. Co]., each battalion is divided in three or four companies in case of Infantry and three or four Batteries or Squadron in the case of. cava.lry, each such unit being led by an officer of the rank of a Major.

To start with, the.expression 'army .~rps' should not be 'confused with the expression 'corps'. Both connote a' distinct and different unit in the army. Section 7 and Rule 189 operate in a different

situatin.· They merely specify who is the commanding officer of a person attached to corps, department or detachment. Corps forms a tiny small part of what is called Army Corps. The expression 'Army Corps' used in s. 8 and s. 125 with its content and juxtaposition leaves no room for doubt that the expression 'Army Corps' and 'corps' have different connotation. Once this is borne in mind the meaning of the expression 'corps', in rule 40 does not present any difficulty. ,

Reverting to sub-rule (3) of rule 187 which prescribes corps for the purposes of s.' 3(vi), every battalion is a corps for the purposes of the Act and Rules. Now there may be a company but not forming part of a battalion and may be independent of any battalion and, therefore, sub clause (b) of sub-rule (3) of rule 187 treats such unattached company not forming part ofa battalionas a corps by itself.· That is equally true of regiment of cavalry, armoured corps or artillery. undoubtedly' every school of instruction, training centre or regimental centre cannot form part of a battalion and must of necessity be a separate Corps. If we recall the composition as roughly sketched, every company is part of some battalion because each battalion is sub-divided into companies. And that is possibly the army unit which is being designated as Corps .

Bearing in mind the designation of battalion in infantry and regiment in cavalry, the unit designated as battalion or regiment will be a 9orps for the purpose of the Act and the Rules. This conclusio11 is

. ~

~. .\

. '

PRITHIPAL •• UNION (Desai, J.) 421

reinforced by reference to rule 187(1) in which there are separate . ' bodies of persons each by its very designation, duties and responsi bilities and functional. requirement would not be part of regular army battalion and, therefore, each ha& to be designated as a corps for the purposes of the Act and fhe Rules. If each battalion in the I infantry or regiment incavalry would be a corps for the purposes of rule 40, the selection of personnel for composing a general cour martial would not present difficulty.- Tf on the other hand as conte ded for the petitioners that the expression 'corps' is an inter-change able substitute for the expression 'army corps', the difficulty of setting up a general court-matial in strict compliance with rule 40 would be insurmountable, This can be. demonstrably established if the compostion of the army as hereirtabove set out is recalled for the . limited purpose of pointing out that com_mand is composed of army corps and each army corps is led. by the officer of the rank of Lt.

General. Expression 'command' may be clarified in the sense that this country is diyided into various commands such as Western Command, Northern Command, etc.

Now, if variojls army corps form part of the command and if for setting _up a general court

martial in strict compliance with rule 40 is to be insisted 'upon, per sons from different army corps have to be selected because as far as

pacticable officers of different army corps-substituting the expression for corps-for the time being will have to be selected.

But the negative inhibition of rule 40 will 'present an insurmountable difficulty in that any such general court martial shall not be composed exclusi vely. of officers of the same• corps. Translated into functional adaptability offices under the same army corps attached to various divisions, brigades under the various divisions, battalions under the brigades and companies under the battalions will be disqualified from serving on the general court martialbecause they all belong to the same 'army corps'. That could not be the object underlying rule 40.

Instead of vertical movement, if a downward movement in the army command is. taken into -_account to ascertain the meaning of the expression 'corps', rule 40 will become workable and would be easy to comply with. What is positively desired 'is that for the composi tion of a general court-martial, one must strive to secure services' of officers of different corps or departments and what must be eschewed is its being composed exclusively of officers of corps' or' departments to which the delinquent officer belongs. If we give a restricted meaning to the expression 'corps' the rule becomes. workable. If wider meaning is given so as to Sl!bstitqte •(rroy corps'" for-'corps' .it

SUPREME COURT REPORTS • [1983} l S.C.ll.

would be wholly unworkable because officers will have to be summoned from another command altogther."' Thus, if we take 'army corps' to mean the same thing as 'corps' and if the accused belongs to a certain army corps all officers belonging to various divisions under the same army corps, to .all brigades under all the divisions of the same army corps, to all battalions under all -brigades 'or the same army-corps and to all companies under all battalions of the -same army corps will.be disqualified because they do not belong to the different corps and are likely to be stigmatised as officers exclusively belonging to the same corps. A vertical movement starting from the bottom which is indicated .by reference to battalion and regiment in subrule (3) of rule 187 clearly indicates that the lowest formation in the battalion or the regiment is corps over' and above those speci fically designated as corps under rule 187(1). Therefore, it clearly transpires that the expression 'corps' in rule 40 must be given the same meaning as set out in sub-rule

0 {3) of rule 187 and it would mean that every battalion in the infantry and every regiment in the cavalry. would by itself be a corps.

Thi.s interpretation accords with. the intendment underlying rule 40. Rule 40 takes note of a possible official bias or personal bias on account of close association. If ofljcers belonging to the same corps have to try brother officer, either there might be possible indulgence towards the brother officer or familiarity in working together mAy have bred such contempt that bias is inevitable. To decry any such possibility and to put personnel of general court• martial beyond reproach, to make it unbiased and objective, compo sition of court-martial was to be so devised by statutory .rules as to make it an ideal body having all the trappings of a court. Two fundamental principles in this .behalf are that the judge must be unbiased and objective free fro~ personal likes and dislikes or pre judice cons.equent upon association of close. familiarity.

People drawn from 'different corps' and avoidiirg officers of the same corps composing the general court-martial would emure an objective, un

biased body. If this is the underlying intendmeot, it is achieved by giving the expression 'corps' a restricted meaning and not a wide mean.ing to make it synonymous wit.h 'Army Corps' at the top, so that it may almost become impossible to search only officers belong-· ing to different armycorps and avoid meaning the court-martial exclusively by officers belonging to same corps because a large body of officers would spill over the line, lf Qn the other han4 as js clearly

' PRITHIPAL v. 1JNION (Desai, J.) 423

fodicated by subrule (3) of'rule 187 a battalion or a regiment is treated as a corps then it is easy to provide composition of court-martial in strfot compliance with rule 40. Under a brigade there. are number of battalions.

Each battalions would be a corps; One can easily draw officers from different battalions as they would be belonging to different corps and one can avoid what is negatively inhibited, viz., a general court-martial being composed exclusively of officers of the co.rps to which the accused belongs. If the accused pelongs to one battalion, even under the same brigade there are number of battalions,..and each battalion being a corps, officers from battalions other than the battalion to which the accused belongs can be convenieptly summ'oned because each battalion is under the. same brigadier. In this manner officers belonging to different corps can be summoned and one can easily avoid a gene'ral court martial composed exclusively of officers of the corps to which the accused belongs .. It would be unwise to reject this construction on tl; ie ground that it does not take note of and try to avoid command influence. Command influ- . '.ence is too vag11e a concept to call in aid for.construction of a rule.

Viewed from e'ither angle the expression 'corps' in rule 40 is not used in the same sense in which the expression 'army corps' is used but it is us.ed in the sense in which it is defined and elaborated in rule 187.

It was contended that the interpretation of rule-40 must be . informed by the underlying intendmenMhat officers composing the co'urt-martial must be independent of command influence or influence . of superior officr~ like the convening officer. This is 'unquestio~

ably correct, save and except saying what meaning one must assign to a loose expression like 'command influence'. If by' command one at the highest level such as commander-in-charge of area is the one li11ely to permeate his influence down to the lowest it would be

impossible to set up a court:martial of officers belonging to entirely a different command. The expressions Iike ihe ,'command influence' and thC 'influence of superior _officers' have to be und.erstood in the context of the vertical. hierarchy. in the composition of army. Once it transpires that the expression 'corps' . in rule 40 has the same 'meaning as has been set out in rule 187 and, therefore, a bat.talion would be'a corps and an unattached company can be a corps by itself, it becomes easy and practicable to set. up a court martial in. which officers outside the corps would be available ad such officers outside the same corps to which an accused belong; conl\I cei'tainly

H -

G ;

4~4 SUPREME COURT RilPORtS [1981J I s.c.ll.

be said to be free from command influece. But to urge that even if the officers of another battalion but forming part of the same brigade are selected the Brigadier being the thp officer under whom various battalions must be operating, the command influence will permeate down. the same difficulty would arise as hereinbefore explicitly set out in setting up a court-martial. The intendment underlying rule 40 is fully subserved by the interpretation, which the 'language employed indicates, put on the expression 'corps' in rule 40. ·

. Undofibtely rule 40 by its very language is not mandatory.

Rule on its own force insists on compliance with its requirements as far as may be practicable. Even with this leeway, a strict compliance with the requirements of Rule 40 must be insisted upon and the

departue on the ground of practicability will, if challenged, have to be proved within the broad parameters of functional adjustibility of the Army requirements. If the interpretation convassed on behalf of tbe petitioner~ is accepted every time the soul of rute 40 will be sacrificed at the alte.r of practicability while the interpretation which we put on the expression 'corps' in rule 40 would help in avoiding shelter under the practicability clause and that in a very large number of cases strict compliance with rule 401 can be insisted upon. If a court martial is set up not in consonance with rule 40 and the defence of practicability is advanced the same can be examined with precision.

Therefore, the expression 'corps' in rule 40is no~ synonymous with the expression 'ary corps' and it must' receive a restricted construction with narrow connoiation as explained in rul_e 187 (3).

There are two further requirements to be complied with while setting up a general court martial. Section 113 provides .that a, general court martial shall consist of not less than five officers, each of whom has held a commission for not less than three whole years and of whom not less than four are of a rank not below that of captain. Sub-rule (2) of rule 40 adds one more condition that the members of court-martial for trial of an officer shall be of a rank not lower than that of the officer unless in the opfoion of the convening officer, officers of such tank arc not (having due regard to the exigencies of public service) available. Such opinion h)l~ ;~ be recorded in the convening order. Sub-rule (J) of rule 40 mei.ely.· incorporates the mandate of s. 113.

i '

...

• P!UmiPAL v. UNION (J>esal, J.) 425

Having formulated. the necessary test for examining the validity of the compqsition of general court martial it is necessary o turn to the facts of each case in this behealf. Lt. Col. Prithi Pal Singh Bedi (Writ Petition No. 4903/81) was holing the rank of Lieutenant Colonel and belonged to the 226 Regiment of 43 Artillery Brigade of 9th Infantry Division of the Indian Army at the rdevant time.

The general CO\Irt-martial set up to try him was composed of five officers. They are: Brigadier Kalk at, an offic.er in rank higher.

than the petitioner, Lt. Col.

Khullar, Lt.

Co.I. Yadav, Lt. Col. Nathu Singh and Lt. Col. Kohli, all of co-ordinate, same or of equal rank, and even though they all belong to 9th Infantry Division, they are drawn from different brigades and regiments and that becomes distinctly clear from the attachment of each set out in the order convening the general court-martial. To be ' precise, Lt. Col. Khullar was Officer Commanding 168 Field Regiment, Lt. Col. Ya<!av Bhopal Singh, S.M. Dogra was officer commanding

10 Dogra, Lt. Col. Nathu Singh, Punjab was officer commanding 5th Rajputana Rifles. It would appear at a glance that even though all th, e five officers belong to the 9th Division, none of them belongs to the same corps to which the petitioner belonged and none was lower in rank than the rank held by the petitioner.

Therefore, the requirement of rule,40 is strictly complied with and there is no contravention in letter and spirit thereof.

In the case of Capt. Dharam Pal Kukrety (Writ Petition No. 1513/79), the general court martial is composed of seven officers.. Petitioner Kukrety was holding the rank ofa Captain.

Of the seven officers composing the court martial the senior-most ls a Brigadier the next in rank is hoidi!'g the rank of Lt. Col. and the remaining five are of the rank of Major. Their designations and attachments show that none of them is even equal in rank with the petitioner; each is holding a rank higher than the petitionr . . Petitioner at the relevant time belonged to 25 lnfanrtry Division which is a division of the 16th Corps of the Indian Army. And all ·.the members composing the court-martial belonged to the 25th Infantry Division which itself is a division of the 15th Corps of the Indian Army. But the expression 'corps' qualifying '16th' is army corps and not corps as understood in rule 40. None of. the officers composing the general court-martial in the case belongs to the corps • to which the petitioner belonged. Theri; fore, there is no violation of rule 40. ....

• F

G •

SUPREME COURT REPORTS

(1983) I s.c.k. .

The petitioner Capt. Chander Kµmar Chopra (Writ Petition No. 5930/80), has alleged in his petition that he belongs to the 33 corps and that each such cprps is divided into divisions. This wi II clearly show that by saying that he belongs to 33 corps he means.to suggest that he belongs to 33 Army Corps. At the relevant time the petitfoner wa1 holding the rank of a Captain and was attached to 877 At: . BN. ASC c/o 99 A.P.O. There is not one w_ord in the petition that any of the officers composing the -general - court-martial set up to try him, belongs to his corps in the sense in which.the:word has been interpreted by us. Nor has he alleged that any one lower in rank than a Captain has been nominated as a member of the general court-martial set up to try him. Therefore, even in this case there is nothing to show .that rule 40 has been violated.

It would be advantageous at this utage to call attention to the provision contained in section 130 of the Act and rules 41 to 44 of tbe Rules. When either a general, district ot summary court martial is assembled and the offender who is to be tried is brought before it, it is obligatory to read out the names of the presiding officer and the members composing the courLmartial to the accused and be is . . asked whether he objects to his being tried by any of the officers sitting on the court. Sub-section (2) of section 130 requires that if the. accused objects to any such officer, his objectio~ and the reply there- _ to of the officer objected to shall be heard recorded andthe remaining officers of the court s.hall in the absence of the challenged officer decide the. objection.

The provision contained in section 130 is elaborated in rules 41 to 44.

Rule 41 requires that as soon as ihe court assembles the order convening the court shall be laid before it together with a charge sheet and summary of evidence as also the ranks, names and corps of the officers appointed to serve on the court. A duty is cast on the court to first. ascertain whether it has been convened according to the provisions of the Act and the.rules.

In order to find out whether rule 40 has 'been complied with or not,

the corps to which each officer composing the court martial is Attached is to be set eut and which will reveal at a glance whether he is qualified to sit on the court. At this stage the accused does not enter into the picture. The duty is casi on the court itself to ascertain whether its constitution is in accordance with the Act and the rules.

Rule 42 cast s a duty on the court to satisfy itself that the person who is to be tried is amenable to the provisions oft he Army Act and tht ach charg~ framed against him discloses an offence

, ,/

...

" - \ )

.• ..

PkltHiPAL v. UNION (Desai, i.) . 42'1

under the Act and is framed is accordance with the rules.

Then . comes rule 43. After the court has satisfied itself that rules 41 and 42 have been complied with the accused is to be brought before the Court. Rule 44 provides that on the accused being brought before tbe court, the order convening the court and the names of the presiding officer and the members of .th.e court shall thenb_e read over to • the accused and he sliall be asked as required by section 130 whether he has any objection . to being tried by any iofficer serving in the Court. Whenever an objection is taken.it has to be recorded, Ip order to ensure that any one objected to does not participate in disposing of the objection, clause (a) of the provisoto.rule 44 directs that the accused shall state the names ofall officers constitutingthe . court in respect of whom he has any objectimi before any objection is disposed of. This is a mandatory requirement. because the officer objected to cannot . participate in the decision disposing of the objection. It is true that if: the court is not .constituted in accordance with the Act and the Rules,. rule. 44 would hardly assist because as in this .case if the contention is that rule' 40 was violated in constituting the court-martial and that each officer was disqualified from being a member of the court-martial, there is none left to dispose of the .contention. In such a situation, rule 44 may not be helpful becuse once such an objectio~ is taken no one shall be competent to decide the o bjecti.;"n. The provision conferring a righi on the accused to object to a member of the court-martial sitting as a mem'ber and participating in the trial ensures thai a charge of bias can be made and investigated against individua.1 members composing. the court-mart.ial.

This is preeminently a rational provision which goes a long way to ensure a fair trial. That stage Is still to come and therefore we refrain from pronouncing on any allegation. of bias against individual member of the court martial.

Similarly a very faint attempt . made by Mr. Sangbi inviting u~ ·

F ' .

to examine the merits of the charge against Lt. Colqnel Bedi should ·

1. G not lure us into doing so.

That is our function at any rate at this stage :and we steer clear the same.

Having examined the general contention as to the legality and

alidity of general court martial set up .in each of these cases,· we may now turn to certain specific contentions raised 'in each petition.

428 SUPREMR C0t1RT REPORTS [198~1 I s.c.K.

In re. W.P. 4903/81 i

 Mr. Sanghi, learned counsel.for the jletitioner urged that precondition to the trial by a general court martial having not been satisfied, the order convening the general court martial to try the petitioner is vitiated. Reliance was placed on rules 22, 23, 24 and

25. They may be 'extracted :

"22. Hearing of Charge :

(I} Every charge against a person subject to the Act other than an.officer, shall be heard in the presence of the accused.

The accused shall have full liberty to cross examine anywitness 11gainst him, and to call any witnesses and make any statement in his defence.

(2) The commanding officer shall dismiss a charge brought before him if jn bis opinion, the evidence does not show that an offence under the Act has been committed, and may do so if, in his discretion~ he is satisfied that the charge ought not to be proceeded. with.

(3) At the conclusion of the hearing of a charge, if the commanding officer is of opinion that the charge ought to be proceeded wHh, he shall without unneces sary delay;

(a) dispose of the case summarily under section 80 in accordance with the manner and form in Appendi~ III; or

(b) refer thecase to the proper superior military authority ; or

(c) adjourn the case for the purpose of having the evidence reduced to writing ; or

(d) if the accused is below the rank of warrant officer, order bis trial by a su'mmary court-martial.

Provided that the commanding officer shall not order 'trial by a summary court-martial without a reference to the officer empowered to convene a district court-martial or on actiye serviee a summary

I ~-

I \

\ ,.

...

...

l'R!TlttPAL •. UNION (Desai, J.) 4~1}

general court-martial for the trial of the alleged offender unless A either-

(a) the offence is one which be can try by a summary court martial without any reference to that officer; or

' (bl he considers that there is grave reason . for immediaie B action and such reference cannot be made without . detriment to discipline.

23.

Procedure for taking down the summary of evidence - . .

(!) Where the case is adjourned for the putpose of having the. evidence reduced to writing, . at the adjourned hearing the evidence of the witnesses who were present and gave , the evidence before the commanding officer, whether against or for the accused, and of any other person whose evidence appears to be. relevant, shall be taken down in writing in the presence add hearing of ihe accused before the commanding officer or such officer as be directs. ·

(2) The accused may put in crossCexamination • mch questions as he thinks fit to any witness, and the qU:Cstions . together with the . answers thereto shall be added. to the. evidence recorded.

(3) The evidence of ach witness after it has been recorded as provided in the. rule when taken down, shall be read over to him, and shall be signed by him, or if he cannot write his name, shall be attested by his mark and witnessed as a token of the correctness of the evidence recordeg. After all the evidence against the accused has been recorded; the accused will be asked : "Do you wish to_ make any, statememt ? You are not obliged t<;> say anything unless you wish to do so, but whatever you say will be token down in writing and may be

gieri in evidence.'.' Any statement thereupon made by the accused shall be taken down and read over to him, but he will not be cross-examined upon it. The accused may then call his witnesses, including, if he so desires, any .witnesses as to character.

SUPREME COURT REPORTS I! 983 j I S.C-R.

(4) The evidence of the witnesses and the statement (if any) of the accused shall be recorded in the English language. If the witness or accused as the case mav . be, does not understand the English language, th.e evidence or statement, as recorded shall be interpreted to him in a language which he understands.

(5) If a person cannot be compelled to attend as a witness, or if, ow.ing. to the exigencies of service or any other grounds. (including the expense and loss of time involved), the attendance of any witness cannot in the opinion of the officer taking the summary ·(to he certified by him in writing), be readily procured,,· a written statement of bis evidence purporting to be signed by him may be read to the accused and inclu ded in the. summary of evidence.

(6) Any witness whO is not subject tomilitary law may be summoned fo attend by order under the banq of the commanding officer of the accused, The summons' shall be iri the form provided in Appendix Ill.

24.

Remand of accused : (l) The evidence and statement (if any) taken down in writing in pursuance of rule 23 (hereinafter referred to as tlie "summary oi' evidence"), shall be considered by the commanding officer, who thereupon shall either-_ .

(a) remand the accused for trial by a court-martial; or

(b) refer the case to the proper superior military authority; or

(c) if he thinks it .desirable, re-bear tbecase and either dismiss the charge or dispose of it summarily.

(2) .If the accused is remanded for trial by a court-martial, the commanding officer shall without unnecessary delay either. assemble a su, mmary cpurtmartiai' (after referring to the officer empowered to convene a district court-martial or on active service as summary general court-martial when such reference is necessary) or 4

- "

PRJTHIPAL v. UNION (Desai, J.) 431

apply to the proper military authority to convene a A court-martial, as the case may require.

 25, Procedure on charge against officr : (I) Where an officer is charged with an offence under the Act, the investigation shall, if be requires it, be held and the evidence, ff he $0 requires; be taken in bis presence, in writing, in the same. manner as 'nearly as circumstances admit, as is required by rule 22 and rule 23 in the case of other persons subject to. the Act.

. (2) When an officer is remanded for the summary disposal of a charge against him or'is ordered to be tried by a court-martiai without any such recording of evidence in his presence, an abstract, of evidence to be adduced shall be delivered to him free of charge as provicjed in sub-rule (7) of rule 33."

The submission is that before a 'general . court martial is convened as provided in rule 37 it is-obligatory for the commanding officer to bear t)l_e charge made against the accused in his preence giving an opportunity to the accused to cross-examine any witness against him and to call any witness. and make any .statement in bis defence -and that if the commanding officer is so satisfied be can dismiss the charge as provided in sub-rule (2) of rule 22. If at the conclusion of the bearing under rule 22 the commanding officer is of the opinion that.the charge ought to be proceeded with, he has four options open to. him, one such being• to adjourn the case.for the purpose of having the evidence reduced to writing, called summary of evidence.

Rule 23 prescribes the procedure for taking down the summary of "evidence which, in"ter alia, provides recording of the evidence of each witness, opportunity to the accused to crossexamine each such witness, etc.

Rule .24 p; ovides that the summary of evidence so recorded shall

0 be considered by the commanding .officer who at that stage has again three curses opn to him, to wit, (a) remand the accused for trial by a court-martial, (b) refer the case to the proper superior military authority; and (c) if be thinks it desirable, re-bear the case and either. dismiss the charge or dispose .hof summarily. It was. urged that in case of the petitioner Li, Col.

Bedi, the commanding officer did not

0 hear the charge in bis presence \hat po direction to prepare a summary of evidene i~ which he

SUPRBMB COURT REPORTS

(1983) f S.C.R.

could participate was given and that without complying with the mandatory requirements of rules 22 and 23 a direction ha.s been given to convene the court-martial to try the petitioner. Rules 22 to 2~ are mandatory in respect or every person subject\ to the Act other than an officer. Therefore, the requirements of rules 22 to 24 are not mandato.ry in case of an officer and this becomes manifestly clear from sub-rule (I} of rule 25 which provides that where an ' officer is charged with an offence under the Act, the investigation shall, if he requires it, be he_!d, and the evidence, if he so requires, be taken in bis presence in writing in the same manner as nearly as circumstances admit, as is required by rule 22 and rule 23 in the case of other persons subjet to the Act.

The opening words of rule 22 clearly demonstrate the mandatory applicability of the provisions in rule 22 and 23 rule in case of persons subject to the Act other than officers. Any lurking doubt in that behalf is removed by the language of rule 25 which provides that if an officer is charged with an offence under the Act, the investigation, if be requires; sh.all be held and the evidence, if he requires shall be held and the .evidence, if requires it, shall be taken in h'is presence. }'he petitioner is an officer.

Therefore, the procedure prescribed in rules 22 and 23 will not apply porprio vigor to him. If he wants rules 22 and 23 rule to be complied with, it is for him to .make a request in that behalf. He has to niake a two-fold request : (I) that the investigation shall be done in his presence; and (2) .. the summary of evidence shall also be drawn in his presence. Petitioner in this case has averred in his petition that the commanding officer did not hear the charge as required by rule 22 and, therefore, he could not participate in the hearing of the charge ngr could be cross-examine the witnesses and make his submissions.

He further stated that no barge-sheet was given to him. He has averred that the order dated November JO, 1980, for taking down summary of evidence is void and illegal as it is violative of Rule 23 of the Rules. Mr. Sanghi contended that failure to comply with rules 22, 23 and 24 has denied to the petitioner an opportunity first to convince the comrnanding officer to dismiss the charge under sub-rule (2) of rule 22 and even if he could noi have persuaded the commanding officer to dismiss the charge after the summary of evidence was recorded, he could have persuaded the commanding officer under rule 24 either to refer the case to superior military authority or re-hear it and dismiss the charge and this dential of opportunity vitiates the subsequent trik by general court martial. Nowhere in the petition the petitioner has specifically

.?'-·

~.

PRITIDPAL v, UNION (Desai, J.) 433

stated that he did make a request that the investigation shall be done in his presence and that the summary of evidence should be recorded in his presence. There is utter sphinx like silence on this point. In para 39 of the counter-affidavit on behalf of the respondents it is specifically stated that rule 25 requires that ir an officer •

wants rules 22 ad 23 to be complied with, be has to make a request in that behalf and that the petitioner never made such a request at the appropriate time and, therefore, .cannot now make a grievance that rules 22 and 23 have not been complied . with. There is no rejoinder to the affidavit. Therefore, it is crystal clear that in the absence of a request from the petitioner as required 'by rule 25, failure to comply with rules 22, 23 and 24 would n'ot vitiate the trial by the general court-martial.

Rex v. Thomson,(') as relied upon to buttress the submission that there has to he hearing of the charge by the officer Com_manding in the presence of the offender and the offender should he afforded full opportunity to he heard before a court martial is convened and this is a mandatory requirement and the courts must draw a distinction between what is merely irregular and what is of such a character as to be of substance. It was . urged that compliance with this procedure which affords full opportunity of participation cannot be treated as merely directory but must be held to be. mandatory to ensure a just and fair trial and its violation must be held to vitiate the order convening the courtmartial and the order would. be without jurisdiction. It may be pointed out that the offender in the case before the court in that case was a non-commissioned officer governed by the Army Act, 188 J.

He was thus a person other than an 0fficer subject to the Army Act and the mandate of rules27 and 23 in his case WOl!ld have applied , in all its rigour but as has been pointed out the petitioner in the present case is an officer and unless he requires it, rules 22 and 23 are not required to be complied with and, therefore, the decision does not advance his any further. Therefore, there is no merit in this contention.

Incidentally it was urged thai to the extend rule 25 erodes mandatory compliance with principles of natural justice as adumberated in rules 22, 23 and 24 it wquld be violative of fundamental rights guaranteed under Article Z l of the Constitution and

(I) [1946) 4 DLR ~79.

434 iUPRBME COURT REPORTS

(1983) I s.c.R. ,

-WOUid be ultra vir<s the Constitution.

Referring to Lee v.

Showmen's Guild of Greai Britain,(') it was urged that public policy would. invalidate any stipulation excluding the application of the rules of natural justice to a tribunal whose. decision was likely to result in deprivation of personal liberty. ·.Continuing along this line it was urged that to . the extent the application of minimum principles of natural justice enacted In rules 22, 23 and 24 depends for its applicabiliiy upon the demand by the officer it would be contrary to public policy which mandates that compliance with rules of natural justice should not be made dependent upon a requisition by the person against whom the inquiry is-held but it must be deemed to be 'obligatory and an integral part of any procedure prescribed for a Tribunal whose decision is likely to result in deprivation of personal liberty. It has already been pointed out that Parliament has the power to restrict or abrogateany of the rights conferred by Part III of the Cons\itutioµ in their applicatipn to the members of the Armed

Forces so as to ensure the proper discharge of duties and maint e- • nance of discipline amongst them.· The Act is one such law and, therefore, any of the provisions of the Act cannot be struck down on 'the only ground that they restrict or abrogate or tend to restrict or abrogate any of the rights conferred by Part III of the Constitution and this would indisputably include Article 21. , But even apart . from this, it is not possible to subscribe to th.e view that even where the prescribed procedur.e inheres compliance with principles of natural justice but makes the same dependent upon .the requisition by the person against whom the inquiry is held, it would be violative of Article 21 which provides that no person shall be deprived of his life or personal liberty except according to tbe

procedure established by Jaw. If the procedure established by law prescribes compliance with principles of natural justice but makes it dependent upon a requisition by the person against whom an .inq'!iry aocording to such 'procedure is to be held, it is difficult to accept the ubmission that such procedure would be violative of Art. 21.

And as far as the Rules are concerned, they have made clear distinction between an officer governed by the Act and any other perso11 subject to the Act. Expression 'officer' h.as been defined to mean a person commissioned, gazetted. or in pay as an officer in the regular Army and includes various other categories set out therein.

By the very definition an officer would be a peron belonging to the upper bracket in the Armed Forces and any {'Cr$Ol\ other than an office~

(I) [t952)2 QB 329, .

. PR!THI PAL v. UNION (Desai.!.)

subject to the provisions of the Act would necessarily imply persons ·

belonging to the lower categories in the army service.

Now, in respect of sue[[ persons belonging to the lower category it is mandatory that rules 22, 23 and 24 have to be followed and there is no

escape from it ecept on the pain of invalidation' of the inquiry.

But wh.en it comes to an officer, a pesson belonging to the upper bracket in the.armed forces, the necessary presumption being that he is a highly educated,, knowledgeable, intelligent person, compliance with rules 22, 23 and 24 is not obligatory but would have t.o be. complied with if the officer so requires it. This is quite rationirl and understandable. One cannot be heard to. say that he would not insist upon an inquiry in which he can participate which is his right, and then turn round and contend that failure to hold the inquiry in .""' accordance with the principles of natural justice as enacted in rules 22, 23 and 24 though he did not insist upon it,, would not merely invalidate the inquiry but the rule which requires compliance at the request of the officer is in itself on that' account ultra vires It,, was, however, urged that in view of. the decisions of this Court tn Mohinder Singh Gill and Anr, v .. The Chief Election Commissioner,

New Delhi & Ors.,(') and Maneka Gandhi v; Union of India, it is an incontrovertible proposition of law that even while finding a balance . between need for expedition and need to give full opportunity to the person against whom the inquiry is held, "a body charged with a duty to act judicially roust comply with the minimum requireme.nts of natural justice and that if observance of natural justice in.the area of administrative decision making so as to avoid devaluation of the 1 principle by administrators aln; ady alarroigly insensit(ve to the rationale of audi altermpartem" that one can ever look upon with equanimity where. this principle gives way before a 'tribunal charged with a duty to act judicially. As has been pithily observed by an author. such an overemphasis overlooking the other procedural

\, safeguards prescribed, "indeed.' wears an engaging .air of simplicity and reason but having examined the eritire procedure one ban say confidently _that this simplicity is merely skin deep." Rules ~2, 23 and 24 prescribe participation at a stage prior to the trial by the court martial.

Undoubtedly, fairness in action' and natural jusiice. have been developing very rnueh in rec(l_nt years and .jf. the power of the executive increases the courts have devs'loped the doctr.ine in an

(I) [1978] 2 SCR 272.

. 436. ~UPREMli COURT REPORTS

( 1983] \ S.C.R •

evolving way so a striking out expendition is perilous.(1) By rejecting the contention a striking expeditioR of this wholesome principle ii not undertaken. It must, however, be pointed out that in a trial which is likely to result in deprivation of liberty the body which has ultimated the power to make an order which would result in deprivation of liberty, must hear the offender offering full participation and that principle cannot be . diluted. However, procedure prescribed in rules 22, 23 and 24 is at a stage anterior to trial by the•court martial. It is the decision of the court martial which would result in deprivation of liberty and not the order directing that the ch.arge be heard or that summary of evidence be recorded or that a court martial be convened. Even in normal trial under the Criminal Procedure Code it has never . been sii°'ggested that it is unfair to launch a crminal prosecution without first hearing the accused (see Lord Salmond in Cozens v. North Daven Hospital

Management Committee('). Therefore, there is no substance in the contention that rules 22, 23 and 24 in view of the provision contained in rule 25 are ultra 'vires Article 21 of the Constitution.

Mr. Banerjee; learned Additional Solicitor-General in this context urged. that even if it is felt that there is some violation of the provisions contained in rules 22, 23 and 24 in case of an officer, as the officer will have an opportunity to exhaustively participate in the

tfial by the court martial the irregularity emanating from non-compliance with rules 22, 23 and 24 would nt vitiate the order convening •. the court-martial. Reliance was placed on Major E.G. Barasay v. The State of Bombay,(') in which the question arose whether an investigation by an officer of the Delhi Special Police Establishment who undertook investigation of the case and failed to comply with two pre-conditions incorporated in the proviso to s. SA of the Prevention of Corruption Act, 1950, the investigation was .vitiated and. the trial ,)(' upon such investigation would be bad. .The High Court held that f the two conditions had not been complied with by the investigating officer but after considering the entire evidence observed that the alleged irregularity would not justify th<> conclusion that the non observance of the conditions prescribed in the priviso to s. SA 0 the Prevention of Corruption Act had resulted in failure of justice.

(I) Schmidt v. Sec. of State for ffome Affairs, [1969) 2 Ch. D. 149.

(2) [ 1962] 2 Q.B. 330@ 343,

(3) p962] 2 S.C.(l.. 195,

. If

PRITm PAL v. UNION" (Desai, J.) 437

This Court agreed with this conclusion. Drawing sustenance from A this conclusion it was urged that irreg\llarity in the course of investigation, if an'y, would not vitiate the trial but in such a situation the court must examine evidence more carefully.

As, we are of the opinion that the failure to comply _with the requirements of rules 22, 23 and 24 depended upon a requisition by the petitioner, his inactio_n or omission in that behalf would have no impact on the order convening the court-martial.

Reference was al_so -made to Flying Officer S. Sundarajan v.

Union of India & Ors. ,(1) where a Full Bench of the Delhi High

Court held that any errnr or irregularity in complying with the C procedure prescribed by rule 15_of the Indian Air Force Rules which is in pari materia whh rule 22 of the Rules would not vitiate the trial and ultimate conviction of the accused because of any error or irregularity at a stage before the accused is charged for the purpose of having the evidence reduced to writing and it will not vitiate the subsequent trial as the guilt of the accused has to be established not

_ D on the basis of what the commanding officer might have done or might not have done at the initial stage. It was further held that - any irregularity in the procedure at that initial stage might have a bearing on the veracity of witnesses examined at the .'trial or on the bona tides of the commanding officer or on the defence that may be set up by the accused at the trial but the irregularity can by no ' Ill means -be regarded, as - affecting the jurisdiction of the court to proceed with the trial. Jurisprudentially speaking the view expreseed is that Rule I 5 is directory and its contravention has no impact on the subsequent trial. Frankly, we have our reservations about the view taken by the Full Bench of the Delhi High Court but as we have held that rules 22, 23 and 24 have not been violated ori F account of the failure of the petitioner to insist upon their compliarrce which it was obligatory upon him to do, we refrain from expressing any opinion_ on this point.

Mr. Sanghi next contended that it is obligatory upon the authorities concerned to appoint 'a cou.rt of inquiry _'whenever an inquiry affects_ the character or military!reputation of a person subject to the Act and -in such an inquiry full opportunity must be afforded to such person' of being present throughout the inquiry and of making

~ I "' .

(1) AIR 1970 Delhi 29._

SUPRBME COURT REPORTS (1983] l s.c.R

any statement or giving any evidence be may wish to make or give and of cross-exa; nining any witness whose evidence In his opinion affects the character or military reputation and producing any witness in defence of bis c.haiacter or military reputation.

Thre are some provisions in the Act which order setting up of a Court of Inquiry in the circumstances andfor the purpose s, et out in the provisions. Section 89 permits collective fines to be imposed in the circumstances therein mentioned but the same can be done after obtaining the , report of court of inquiry, In other words, where it is ,_considered neceSS!lrY and permisible under the Act to impose a collective fine it can be done after obtaining the report of a court of inquiry whicli will presage an appointment of a such a court of inquiry.· Similarly, section 106 comprehends the appointment of a court of inquiry whc;_n any person subject to the Act &as been absent from his duty without due authority.for a period of 30 'days, an_d such court is required to inquire in respect", of the absence of the person and the deficiency if any in the property of the Government entrusted to his care, or in any arms, ammunition, equipment, instruments, clothing or necessaries, and if satisfied of the fact of such_ absence without due authority or other sufficient cause, the court . shall declare such absence and the _period thereof, and the said deficiency; if any the commanding officer of the corps or department to which te person belongs shall enter in the court-martial book of 'the corps or. department a record of the deciaration. A reference to these two sections would show thaf where action cari be taken after obtaining report of the court of inquiry it has been so specified.

Now, when an offence is committed and a trial by a general court martial is to be held, there is n0 provision which requires that a court of inquiry should be set up before the trial is directed.

Mr.

Sanghi, however, urged that on a correct interpretation of rule 180, it would appear that whenever the character of a person subject to the Act is involved in any inquiry, a court of inquiry must be set up.

Rule 180 'does not bear out the submission. It sets up a stage in the procedure prescribed for the courts of inquiry, Rule 180 cannot be construed to mean that whenever or wherever in auy inquiry in respect of any person subject to the Act his character or military reputation is likely to be affected setting up of a Court of inquiry is a sine qua non.

Rule 180 merely makes it obligatory that whenver . a court of inquiry is set up and in the course of inquiry by the court . of inquiry character or military reputation of a person is likely to

be effected then such a person must be given a full opportunity to participate in the proceedings of our! <;>f inquiry. Cour\ of inquiry

,.,

i'RiTHiPAL v, IJN10N (besatJ.) . ~39

by its very nature is likely to exaine certain issue generally , concerning a situation or persons. Where collective fine is desired to be imposed, a court of .inq\liry may. generally examine the shortfall to 'ascertain how many persons are responsible. Jn the course of such an inquiry there may be a distinct possibility of character or military reputation of a person subject to the Act likely to be affected. His participation cannot be avoided on the specious plea that no specific inquiry was direcied against the person whose character or military re1mtation is involved .. To ensure that such a person whose character or military reputation is likely to be affected by the proceedings of the court of inquiry should be afforded full opportunity so that nothing is done at his back and without opportunity of participation, rule 180 merely makes an enabling provi~ sion. to ensure such participation.

But it cannot 15e used to say that whenever in any other inquiry or an in'quiry before a commanding officenindei:_rufo 22 or a convening officer under rule 37 of

- the trial by a court mitr\ial, character or . military reputatiori of the . officer concerned is likely to be affected a prior inquiry by "the court of inquiry is sine qua non. Therefore, the contention being without merits must be negatived. .

It was next contended that the petitioner was not supplied the relevant documents asked for by him and that~ therefore, 'he is not being afforded a full and adeql\ate opportunity to defend himself.

Rule 33 ensures prepartion for defence. by .the acused person." He has a right to call witnesses in his defence.

The limiied grievance is that by his letter dated November II, 1980, he requested that dou- . , . ments concerning.the case against him may .be supplied to him.

He also gave the name of Sub.

Gopal Chand as an essential witness.

By his letter d_ated November 14, 1980, thepetitioner requested to supply hi:n the copies of the documents therein listed. As the trial by the court martial has not been commenced, we are sure that the authorities concerned will supply necessary documents to the petitioner in order to avoid even a remote reflection that he was not given adequate opportunity to defend himself.

' In passing it is necessary to.observe tha1 lhe procedure prescribed

for trial of sessions cases in Chapter XVIII of the Code of •Criinal.

Proced]!re when compared with the procedure prscribed for. trial by a general court martial there is very little eviation or departure and n'

SUPREME COURT REPORTS [!983j l s.C.R.

more or less the procedure appears to be fair, just and reasonable, Dr. O.P. Sharma, Judge-Advocate-General, Indian Army, in his M ilicary Law in India, p. 156, after comparing the two procedures observes that the procedure of .trial by court martial is almost analogous to the procedure of trial in tile ordinary criminal courts.

He points out two demerits, viz., a distinct possibility of a successive trial by a cril"inal court and a court-martial exposing the accused to the hazards of double jeopardy, and the absence of a provision for bail. The horrendous delay of trial in ordinary criminal courts has its counterpart in delay in trial by court-martial also.

Save and except this deficiency and one or two of minor character both the procedures are almost identical and this aspect has to some extent influenced our decision.·

Writ Petitions 1513 of 197~ and 5930 oj 1980:

Save and except the contention as to the validity of the composition of the court martial no other specific contention was raisd in these tivo petitions. -

Reluctance of the apex court more concerned with civil law to interfere with the internal affairs of the Army is likely. to create a distorted picture in the minds ofthe military personnel that persons subject to Army Act are not citizens of India. It is one of the cardinal features of our Constitution that a person by enlisting in or entering armed forces does not cease to l)e a citizen so as to wholly deprive him of his rights under the Constitution. More so when this Court held in Suni/ Batra v. Delhi ;4.dministration & Ors. (1) that even prisoners deprived of personal liberty are not wholly denuded of their fundamental rights.

In the larger interest of national security and military discipline Parliament in its widsom may restrict or abrogate such rights in their application to the Armed Forces but this process should not be carried so far as io create a class of citizens not entitled to the benefits of the liberal spirit of the Constitution. Persons subject to Army Act are citizens of this aneient land having a feeling of belonging to the civilised community governed by the liberty oriented consitution. Personal liberty makes for the worth of human being and is a cherished and prized right. Deprivation thereof must be -preceded by an inquiry ensuring fair, just and reasonable procedure and trial by a judge of unquestioned inte-

(1) [1979],1S.C.R.392 at 495.

. ...;:

.. -

1'Rl1111PAL v. dNION (Desai, J.) 441

grity and wholly unbiased.

A marked difference in the procedure for trial of an offence by the criminal court and the court martial is apt to generate dissatisfaction arising out of this differential treatment .. Even though it is pointed out that the procedure of trial by court martial is almost analoguous to the P'.ocedure of trial in the ordinary criminal courts, we must recall what Justice Willi.am O'Douglas observed 'that civil trial i~ held in an atmosphere conducive .to the protection of individual rights whi_le a military trial is marked by the age-old manifest destiny of retributive justice.

Very expression 'court martial' generally strikes terror in the heart or the person to be tried by it.

And somehow or the other the trial is looked upon with disfavour'(') In Reid v. Covart.( 2) Justice Black observed at p. U 74 as under;

"Courts-martia, l are typically ad hoc bdies appointed by a military officer from among his subordinates. They have always b'een subject to varying degrees of "comtiiand influence". In essence, these tribunals are simply executive tribunals whose personnel are in the executive chain of command. Frequently; the members of the court-martial must look to the appointing officer for pro motions,· advantageous assignments and efficiency ratings-in short, for their future progress in the service.

Conceding to military personnel that high degree of honesty and sense justice which nearly all of them undoudtedly have, the members of a court-martial, in the .nature of things, do not and cannot .have the Independence of jurors drawn from the general

public or of civilian judges." ·

"Absence of even one appeal with power to review evidence; legal formulation, conclusion and adequacy or otherwise cif punishment is a glaring lacuna i~ a country where a cou.nterpart civilian convict can prefer appeal after appeal to hierarchy of courts. Submission that full review of finding and/or. sentence in confirmation proceeding under section 153 is provided for is poor solace. _ A hierarchy of courts with appellate powers each having its own power of judicial review has of course been found to. be counterproductive but the converse is eq11ally distressing in that there is not even a single .

(1) -Tough Test for Militaty Justice; Time Magazine. pp. 42 & 431 . (2) IL. Ed. 2d. 1)48,

SUPREME COURT REPORTS [1983} 1 s.C.H.,

judicial review.

With the expanding horizons of fair play in action even in administrative decision, the universal decleration of human rights and retributive justice being relegated to the uncivilsted days, a time has come when a step is required to be taken for at least one 1 review and it must truly be a judicial review as and by way of appeal to a body composed of non-military personnel or civil personnel.

Army is always _on alrt for repelling external aggression and supressing internal disorder so that the peace loving citizens enjoy a social order based on rule of law; the same cannot be denied to the protec- . tors of this order. And it must be realised that an appeal from Ceaser to Ceaser's wife ... confirmation proceeding under section 153has been condemned as injudicious and merely a lip sympathy to form.

The core question is whether at least there should be one appeal to a bo_dy composed' of non-military personnel and who would enjoy the right of judicial review both on law and facts as also determine the adequacy of punishment being commensurate with tlie gravity of the offence _charged.

Judicial approach by people wellversed inobjective analysis of evidence trained by experience to look at facts and law objectively, fair play and justice cannot always be sac; ificed at the alter of military dlsciplie. Unjust decision would be subversive of discipline. There must be a judicious admixture of both. And nothing revolutionary is being suggested. Our Army Act was more or less modelled on the U.K. Act.

Three decades of its working with winds of change blowing _over the world necessitate a second look so as to bring it in collformity Y(ith liberty oriented consitution and rule of law which is the uniting and integrating force in our political society. Even U.K. has taken a step of far reaching importance for rehabilitating the confidence of the Royal Forces in respect of jud.icial review of deCisions of court-martial. U.K. had enacted a Court Martial (Appeals) Act of 1951 and it has beeo extensively amended in court Martial (Appeals) Act, 1968.

Merely providing an appeal by itself may not be very re-assuring but the persona al of the appellate cmit must inspire confidence. The court martial appellate Court consists of the ex-offido and ordinary judges

G of the Court of Appeal, suchof the judges of the Queen's Bench ' Division as the Lord Chief Justice may nominate after consultation with th> Master of the Rolls, such of the Lords, Commissioners of Justiciary in Scotland as the Lord Chief Justice generally may n9minate, such judges of the Supreme Court of the Northern .Ireland as the Lord Chief Justice of Northern Ireland may nominate and such,

of the persons of legal experience as the Lord Chall'Cellor may H

·~

i>Rl, THI PAL •. UJ'>llON (besai J.)

appoint. The court martial appellate court has power to determine any question necessasy to be determined in order to do justice in the case before the court aµd may authorise a new trial where the conviction is quahed in the light of fresh evidence. The court also has power Inter alia, to orger production of documents or exhibiton

nected with the proceedings, order the attendance of witnesses, . receive evidence, obtain reports and the Ii ke from the. me.mbers of the court martial or the person who acted a Judge-Advocate, order a reference of any question to a Special Commissioner for Inguiry and appoint a person wit)! special expert knowledge to act as an 11ssessor,(!) Frankly the appellate court has power of full judicial review unhampered by any' procedural clap trap.

Turning towards the U.S.A., a reference to Uniform Code of Military Justice Act, 1950, would be instructive.

A provisioh has been made for setting up of a court of military appeals. The Act contained many procedural reforms and due process safeguards not then guaranted in civil courts. To cite one example, the tight to legally qualified counsel was ma4e mandatory in general court- .martial cases I 3 years before the decision of the Supreme C._onrt in Gideon v. Waimyriget,(2) Between 1950 and 1968 when the Administration of Justice Act, 1968, was Introduced, many advances were made in the administration of justice by civil courts but they were

• f not reflected in military court proceedings. To correct '.these deficien.- cies the Congress enacted Military Justice Act, 1968, the salient features of which are : (I) a right to legally qualified coun.sel guaranteed to an accused before any special court martial;

(2) a military judge can in certain circumstances conduct the trial a.lone and the accused in such a situation is given •the option after learning the ideptity of the military judge of requesting for the trial by the judge alone. A ban bas been imposed on command interference with military justice, etc.:· Ours is still .an antiquated system. The wind of change blowing over the country has not permeated the close and sacrosanct precincts of the Army. If in civil courts the universally accepted dictum is that justice must no.t only be done but it must seem to be done, the same holds good with all 'the greate~ vigour In' case of court martial where the judge and the accused done the same

dress, have the same mental discipline, have a strong hierarchical

sulijugation and a feeling ·f bias in such circumsta, nces is irremove-

(I) Halsbury"s Laws of Eogland, 4th Ed!'. Para, 954-5_5, pp. 458-59.

wm~~ ·

SUPREME COURT REPORTS [1983) I s.c.R.

able. We, therefore, hope and believe that the changes all over the English speaking democracies ill awaken onr Parliament to the changed valne system. In this behalf, we would like to draw pointed attention of th_e Government to the glaring anom.aly that Courts Martial do not even write a brief reasoned order in support of their conclusion, even in, cases. in which. they impose the death sentenc~.

This must be remedied in order to ensure that a disciplined and dedicated Indian Army may not. nurse a grievance that the substance of justice and fair play is denied to it.

With'these observations we-dismiss all the three petitions and vacate all interim orders. There shall be no order as to costs.

P.B.R.

- Petitions.dismissed. ,