Lt. Col. Prithi Pal Singh Bedi Vs. Union of India & Ors [1982] INSC 65 (25 August 1982)
DESAI, D.A.
DESAI, D.A.
CHANDRACHUD, Y.V. ((CJ) SEN, AMARENDRA NATH (J)
CITATION: 1982 AIR 1413 1983 SCR (1) 393 1982 SCC (3) 140 1982 SCALE (1)676
CITATOR INFO :
F 1987 SC2386 (5) R 1989 SC 611 (11) RF 1990 SC 65 (3) R 1991 SC 558 (6) RF 1991 SC1617 (15,28,36) R 1992 SC 1 (61)
ACT:
Army Act 1950-Section 21-Scope of-Law prescribing procedure for trial of offences by court martial-If should satisfy requirements of Article 21 of Constitution-Absence of provision for appeal-A lacuna in the Act.
Army Rules 1954-Rules 22 to 25, 37, 40, 44, 180 and 187-Scope of-Composition of court martial-Requirements of- "Corps"- if means "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 justice-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- intention of legislature how ascertained.
HEADNOTE:
The petitioner in each of the three writ petitions who was to be tried by general court martial for breach of army discipline questioned the legality and validity of the order convening the general court martial, more particularly its Composition.
In their petitions under Art. 32 of the Constitution it was contended on behalf of the petitioners that to satisfy the requirements of Article 33 the law must be a specific law enacted by Parliament in which a specific provision imposing restriction or even abrogation of fundamental rights should be made; (2) that rule 40 of the Rules should be so construed as to sub-serve the mandate of Article 21 that the Army with its total commitment to national security against foreign invasion must be assured the prized liberty of individual members against unjust encroachment and the court should strike a just balance between military discipline and individual personal liberty; and (3) that principles of natural justice should be observed even in respect of persons tried by the Army Tribunals.
Dismissing the petitions,
HELD: The dominant purpose in construing a statute is to ascertain the intention of Parliament. One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision, the Court should adopt literal construction if it does not lead to an absurdity. To ascertain the literal 394 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 sub-serve and the authority by which the rule is framed.
[404 F-H; 405 A-B] Article 33 of the Constitution which confers power on Parliament to determine to what extent any of the rights conferred by Part III shall in their application to the members of armed forces be restricted or abrogated does not obligate that Parliament must specifically 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 in respect of any item must be preferable to any entry in the relevant legislative list. The 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 repugnancy between Part III and the Army Act. [412 E-H] Ram Sarup v. Union of India & Another [1964] 5 SCR 931:
referred to.
Section 21 of the Army Act merely confers an additional power to modify rights conferred by Art. 19(1)(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 power conferred by Art. 33. Therefore, it is not possible to accept the contention 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 stands in derogation 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. [413 E-G] Dalbir Singh v. State of Punjab [1962] Suppl. 3 SCR 25:
held inapplicable.
Rule 40 which deals with composition of the court martial enjoins both a positive and negative requirement:
positively that it shall be composed or officers of different corps or departments and negatively that it shall not be com posed exclusively of officers of the corps or the department to which the delinquent belongs. Both these requirements are subject to the overriding consideration that one or the other requirement could be given a go-bye if it is otherwise 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 D] The 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 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 by itself. In other words, 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 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 separate bodies of persons each by its very designation, duties and responsibilities, and functional requirements would not be part of regular army battalion and, therefore, each has to be designated as a corps for the purpose of the Act and the rules: [419 H] If various army crops from 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 an insurmountable difficulty in that any such general court martial shall 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 the rule becomes workable. If on the other hand a wider meaning is given so as to substitute "army corps" for "corps" it would be wholly unworkable because officers will have to be summoned 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 r.
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-D] To put the personnel of the general court-martial beyond reproach and to make it unbiased and objective composition of the court-martial was so devised by statutory rules as to make it an ideal body having all the trappings of a court. People drawn from different corps, and avoiding officers of the same corps composing the general court martial, would ensure an objective unbiased body. This is achieved by giving the expression "corps" a restricted meaning so as not to make it synonymous with Army Corps at the top. If a battalion or a regiment is treated as a 'corps' then it is easy to provide composition of court martial in strict 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 D] It is, of course, true that the interpretation of rule 40 must be informed by the underlying intendment that officers composing the court martial must be independent of command influence or influence of superior officers like the 396 convening officer. This depends on what meaning one must assign to a loose expression like 'command influence' and 'influence of superior officers'. These expression have to be understood 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 the battalion 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 to which an accused belongs are enlisted and it could certainly be said to be free from command influence. [423 E-H] Rule 40 by its very language is not mandatory. This 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 departure on the ground of practicability will, if challenged, have to be proved within the broad parameters of functional adjustability 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 shall be of a rank not lower than that of the delinquent officer unless in the opinion of the convening officer, officers of such rank are not available. Sub-rule (3) of rule 40 merely incorporates the mandate of section 113. [424 F-H] In the instant case the general court-martial set up to try the petitioner in Writ Petition No. 4903181 consisted of five officers one of whom was of a higher rank and the others were of coordinate or of equal rank. Even though all of them belonged to the 9th Infantry Division they were drawn from different brigades 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 strictly complied with.
[425 B-E] In the case of the petitioner in Writ Petition No. 1513/79 the general court martial was composed of seven officers, each of whom held a rank higher than the petitioner was none 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 officers composing the general court-martial belonged to his corps nor was any of them lower in rank than a Captain therefore. There was nothing to show that rule 40 had been violated. [426 A-C] When either a general, district or summary court- martial is assembled and the accused is brought before it, section 1 30 enjoins that the names of the 397 presiding officer and the members composing the court martial 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 shall be heard and recorded and the remaining officers of the court shall in the absence of the challenged officer decide the objection. This provision is elaborated in rules 41 to 44. In order to ensure that any one objected to does not participate in disposing of the objection, clause (a) of the proviso to rule 44 directs that the accused should state the names of all officers constituting the court in respect of whom he has any objection. This is a mandatory 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 objection is taken no one shall be competent to decide the objection. The provision conferring the right on the accused to object to a member 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 composing the court- martial. This is a pre-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-martial.
[426 D-H; 427 A-F] Rules 22 to 24 are mandatory in respect of every person subject to the Act other than officers. That the requirements of these rules are not mandatory in the case of an officer, becomes manifestly clear from rule 25(1) which provides that where an officer is charged with an offence under the Act the investigation shall if he requires it be held and the evidence if he so requires it be taken in his presence in writing in the same manner as nearly as circumstances admit as is required by rules 22 and 23 in the case of other persons subject to the Act.
[432 B-C] The petitioner in this case being an officer, the procedure 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 request that the investigation be done in his presence and that the summary of evidence be drawn in his presence. Nowhere in the petition did the petitioner specifically state that he did make such a request. In the absence of such a request failure to comply with rules 22 to 24 would not vitiate the trial by the general court martial. [432 D-E; 433 A-C] Rex v. Thomson [1946] 4 Dominion Law Reports 579, held inapplicable.
There is no force in the argument that to the extent that the application of principles of natural justice enacted in rules 22 to 24 is made dependent on the demand by the officer concerned, compliance with rules 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 liberty. Parliament has the power to restrict or abrogate any of the rights conferred by Part III in their application to members of the Armed Force so as to ensure proper discharge of duties and maintenance of discipline amongst them. The Army Act is one 398 such law. Therefore none of the 'provisions 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 conferred by Part III which include Art. 21. 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 inquiry has to be held such procedure would not be violative of Art. 21. [434 B-E] 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. The 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 presumption is that he is a highly educated knowledgeable intelligent person and compliance with these 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 upon an inquiry in which he would Participate and then turn round and contend that failure to hold the inquiry in accordance with the principles of natural justice would invalidate the inquiry.
[434 G-H; 435 A-C] Mohinder Singh Gill and Anr. v. The Chief Election Commissioner New n Delhi & ors. [1978] 2 S.C.R. 272 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 has 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 rule 25, are ultra vires Art. 21 of the Constitution. As failure to comply with the requirements of rules 22, 23 and 24 depended upon a requisition by the petitioner, his inaction or omission in that behalf would have no impact on the order convening the court martial. [435G-H: 436A-C] Major E.G. Barsay v. The State of Bombay [1962] 2 S.C.R. 195 referred Rule 180 cannot be construed to mean that whenever or wherever in any enquiry in respect of any person subject to the Act his character or military reputation is likely to be affected, setting up of the court of enquity is sine qua non. By its very nature the court of enquiry is likely to examine certain issues concerning a situation or persons and in the course of such enquiry there may be a distinct possibility of character or military reputation of a person subject to the Act being affected. To ensure That such person should be afforded full opportunity to participate, rule 180 merely makes 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 rule 22 or a convening officer under 399 rule 37 of the trial by the court-martial in which the character or military reputation of the officer concerned is likely to be affected, a prior enquiry by the court of enquiry is a sine qua non. [439 G-H; 440 A-D] Absence of even one appeal with power to review evidence, legal formulation, conclusion and adequacy or otherwise of punishment 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 for at least one 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.
[441 F-G; 442 B]
ORIGINAL JURISDICTION : Writ Petition Nos. 4903 of 1981, 1513 of 1979 and 5930 of 1980.
(Under Article 32 of the Constitution of India) G.L. Sanghi, Ashok Grover and Girdhar Govind for the Petitioner in W.P. No. 4903 of 1981.
M.K. Banerji, Additional Solicitor General, Girish Chandra and Miss A. Subhashini for the Respondents in W.P. No. 4903/81.
V.M. Tarkunde, E.C. Agarwala, V.K Pandita and P.N. Ramalingam for the Petitioners in W.P. Nos. 1513/79 & 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.
The Judgment of the Court was delivered by DESAI. J. Validity and legality of an order made against 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 constitutional validity of rules 22, 23, 2S and 40 of the Army Rules, 1954 ('Rules' for short) as being violative of the fundamental rights of the petitioner guaranteed under Articles 14 and 21 of the Constitution. As certain contentions were common to all the three petitions they were 400 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 Petition 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 one of the subordinate 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 procedure being that the attention of the subordinate officer is drawn to the counselling 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, AVSM 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 of office of Brigadier consequent upon the transfer of Brig. N. Sondhi. It is admitted that petitioner had also received his order of transfer dated February 6, 1980 but he left the charge on February 26, 1980, after completing 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 that Major R.S. Sehgal in respect of whom petitioner wrote the confidential report on February 20, 1980, Which contained a counselling remark adverse to the officer was a near relation of Brig. N. Sondhi. 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 Headquarters 43 401 Artillery Brigade to Brig. Sondhi for reviewing the same.
While so A reviewing the confidential reports, Brig. Sondhi addressed a query with respect to the last sentence 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 officer as to whether he was aware of the complete para prior to signing. The ICR may thereafter be returned for onward dispatch". 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 suspicion arose on 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 ultimately this alleged interpolation in the interim confidential report after the same having been initialled by the officer reported upon is the gravamen of the charge under section 45 of the Army Act on which the petitioner is called upon to face a' trial by the General Court Martial convened under the impugned order dated April 11, 1981.
Re: Writ Petition No. 1513/79:
The first petitioner Captain Dharampal Kukrety and Petitioner 2 Naik Bhanwar Singh were both attached at the relevant time to 2 Rajput Regiment but since the order to try them 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 1 was promoted as Acting Major but because of the direction to try him before a Court material 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 officer of the 2 Rajput Regiment and the 1st petition was directly under him being second in command. One Major V.K. Singh belonging to the 2 Rajput Regiment 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 petitioner being the second in command was officiating Commanding officer when Lt. Col. Verma proceeded on leave. On October 16, 1978, the 1st petitioner informed Major V.K. Singh 402 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 10 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 1st petitioner to make investigation and submit report. On the 1st petitioner making the report, Lt. Col. S.N. Verma ordered abstract of evidence to be recorded by framing some charge against Major V.K. Singh. The allegation 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 interview with 5th respondent on December 16, 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 that 1st petitioner be put on AFMS-10 for psychiatric investigation.
1st petitioner sought attachment to other unit, certain very untoward incidents followed which are detailed in the report of Court of Inquiry set up for ascertaining the facts which are not necessary to be detailed here. 1st petitioner has 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 petition.
Re: Writ Petition No. 5930/80 Petitioner Captain Chander Kumar Chopra joined the Army as 2nd Lieutenant 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 personal interview with 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 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 on March 7, 1979, submitted an application to the Chief of Staff, Headquarters, 33 Corps c/o 99 APO to bring 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 whereupon the petitioner made an application for casual leave for 13 days w.e.f. February 26, 1979, which appears not to have been granted. 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 March 7, 1979, and surrender the demi official letter addressed to Coy. 33 Corps in the interest and name of the Unit. Thereafter the petitioner was 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 dictated 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 that 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 Pendings of the Court of Inquiry save and except that not only the Court of inquiry negatived all the allegations of petitioner against Major Malhotra but on the contrary found that the petitioner had taken some store items unauthorisedly on January 30, 1979, which were returned on January 31, 1979 Pursuant to the findings of the Court of inquiry a charge-sheet was drawn up against the petitioner for having committed offences under sections 52 (b), 56 (a) and 63 of the Act. Direction was given for recording summary of evidence. Subsequently the impugned order convening the General Court Martial was issued. The petitioner thereupon filed the present petition. H 404 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 petitions and they may be dealt with first.
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 intendment underlying rule 40. It was said that the grammatical construction must accord with the underlying intendment of rule 40 and that the approach must be informed by the expanding jurisprudence and widening horizon of the subject of personal liberty in Art. 21 because in the absence of Art. 33 the procedure prescribed for trial by the General Court Martial under the Act would have been violative of Art. 21. Approach, it was urged, must be to put 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 individual personal liberty. And door must not be bolted against principles of Natural justice even in respect of Army tribunal. An unnatural distinction or differentiation between a civilian offender and an offender subject to the Act would be destructive 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 is any ambiguity in the language 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 Rule 40. If there is none, it would mean the language used, speaks the mind of Parliament and there is no need to look somewhere leers discover the intention or meaning. If the literal construction leads to a 405 absurdity, external aids to construction can be resorted to.
To ascertain the literal 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. This necessitates examination of the broad features of the Act.
The Act as its long title would show was enacted to consolidate and amend the law relating to the governance of the regular Army and it came into force on July 22, 1950.
Section 2 sets out the persons subject to the Act. Section 3 provides the dictionary clause. Sub-section (2) of section 3 defines 'civil offence' to mean an offence which is friable by a criminal court. Expression 'corps' is defined in section 3 (vi) to mean any separate body of persons subject to the Act which is prescribed as a corps for the purpose of all or any of the provisions of the Act. 'Department' has been defined in placitium (ix) to include any division or branch of a department. Chapter III deals with the commission, appointment and enrollment of Army personnel.
Chapter IV sets 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 13 Act and if charged therewith under the section, shall 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 offence 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 P under the Act, by the court martial and be punishable 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 in 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 conflict of jurisdiction, section t25 is enacted conferring a discretion on the officer commanding the army, 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 406 instituted and if that officer decides that it should be instituted before 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 use his discretion in favor of court-martial under section t25, to deliver the accused to the nearest magistrate to be proceeded against according to law, or he may direct the officer to postpone proceedings pending a reference to the Central Government. On such a reference being made, the Central Government will have power to determine whether the person should be tried by an ordinary criminal court or by a Court Martial and the decision of the Central Government in this behalf is rendered final. A successive trial by a court-martial and the ordinary criminal court is distinctly possible in view of the provision contained in section 127. Chapter VII 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 arrest 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 other kind of court- martial. Section 113 provides for composition of General Court-Martial and it may be extracted:
"113. 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." Section 118 confers power on general or summary general court martial to try any person subject to the Act for any offence punish able therein and to pass any sentence authorised there under. 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 1 general court-martial, as soon as the court is assembled, the names of the presiding officer and members shall be read 407 over to the accused, who shall thereupon be asked whether he objects to being tried by any officer sitting on the court.
(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 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 objection 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 been made and disallowed, or the place of every officer successfully challenged has been filled by another officer to whom no objection is made or 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 sentence awarded by court-martial. Chapter XIV deals with pardons, remissions and suspensions of sentence. 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(l), the rules made inter alia 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 to be observed in trials by courts-martial and the appearance of legal 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 hearing of charge at a stage anterior to the convening of court-martial. After this preliminary hearing 408 of the charge, if further action is contemplated, rule 23 prescribes procedure for recording summary of evidence.
After recording summary of evidence rule 24 enables the Commanding 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 for inquiry of charge against an officer, 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 and an embargo on censoring his correspondence with his 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 courts-martial. Rule 37(1) and (2) were relied upon in support of a submission by Mr. Sanghi, which provides that the convening officer before convening court martial has to satisfy himself that the charges to be tried by the court are for offences 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 case to the superior military authority.
Rule 41 provides that on the Court assembling, the order convening the court shall be laid before it together with the charge-sheet and the summary of evidence or a true 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 it is legally constituted and one such duty being that 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 com posing the court-martial is eligible and not 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 has 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 of the Act to state whether he has any objection to be tried by any officer sitting on the Court. A detailed procedure is prescribed for disposing of the objection. Elaborate trial procedure 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 the 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 Army Staff or the convening officer declares 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 court 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 associate a Judge-Advocate, rule 105 provides for powers duties and obligations of the Judge Advocate, one such being that both the prosecutor and the accused are entitled to his opinion on any question of law relating to the charge or trial. Rule 177 provides for setting up of a Court of Inquiry its composition and the subsequent rules provide for the procedure to be followed by a Court of Inquiry. Rule 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 present 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 of his character or military reputation This rule was relied on by Mr. Sanghi to urge that whenever character or military 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(vi). It prescribes that bodies of persons subject to the Act are to be treated a 'Corps' for the purpose of Chapter 111 and s. 43(a) of the Act and Chapters II and III of the Rules.
410 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 confer red by this Part in their application to forces:
Parliament may by law determine to what extend any of the rights conferred by 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 fundamental 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 prescribed 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 and the law prescribing such procedure must satisfy the test prescribed by Arts. 14 and 19. It was contend ed that in view of the decision in Maneka Gandhi v. Union of India(1) 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 and reasonable, any deviation therefrom in the procedure prescribed for trial by court-martial would neither be just, fair nor reasonable and it would be violative of Art. 21.
The question really is, how far this contention about violation of Art. 21 is available in view of the provision contained in Art. 33. The contention is that in order to satisfy the requirement of Art. 33, Parliament must enact specific law specifying therein the modification of the rights conferred by Part III and that a restriction 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 provision 411 imposing restriction or even abrogation of fundamental rights should be made and when 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 Ill 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 the fundamental rights enacted in Part III in their application to the members of Armed Forces. The act was enacted in 1950 and was brought into force on July, 1950. Thus the Act 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 in exercise of legislative power and legislative craftmanship does not 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 over the provisions but also Art. 33 which to some extent carves out an exception to Arts. 12 and 13 must be present to the corporate mind of Parliament which would imply 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 exposition Section 21 of the Act clearly sets out the limits of such restriction or abrogation and no more. Section 21 confers power on the Central Government to make rules restricting to such extent and in such manner as may be necessary to modify the fundamental freedom conferred by Art. 19(1) (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 have been 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 Parliament by law to abrogate or restrict fundamental rights in their 412 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 fundamental 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 requirement 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 between 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 in 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. [t has to 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 provision of the Army Act enacted by the Parliament, if in conflict with the fundamental 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 Part Ill 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 Ram Sarup v. Union of India & Another(l) in which repelling 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 learned 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 provisions of any of the articles in Part III of the Constitution, it must be taken that to the extent 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 effect 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 thereby in the exercise of its power under Art. 33 of the Constitution made the requisite modification to affect the . respective fundamental rights." Section 21 merely confers an additional power to modify rights conferred by Art. 19(1) (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 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 stands in derogation 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 Dalbir Singh v. State of PunJab(2) but it hardly illuminates the contours of controversy. The contention raised was that section 3 of the PEPSU Police (Incitement to disaffection) Act, 1953, was violative of Article 19(1) (a) and was 414 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 public order and since any breach of discipline 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 Constitution it would be an Act of Parliament in exercise of the power conferred by Art. 33 and as the police force would be one such force as contemplated by Art. 33 charged with the maintenance of public a 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, therefore, any law enacted by the President in exercise of this power would not have the force of Parliamentary legislation contemplated by Art. 33. But this is hardly of any assistance. In Lt. Col. M.L.Kohli v. union of India & ors (l) the petitioner challenged certain provisions of the Army Act and it was contended' that Art. does not cover ex-servicemen who are not serving members of the defence forces. In fact, at the hearing of the petition the contention was withdrawn and, therefore, it is not necessary to examine this decision any further.
Mr. Tarkunde, however, contended that the observations of the Constitution Bench in Ram Sarup's case in respect of 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 made 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 the requisite modification to affect the respective fundamental rights, are obiter.
Preceding along this line 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 an offence to be defended by a lawyer of his own choice, the denial of this right to 415 the accused would be violative of Art. 22 and the trial would be a vitiated. It is true that this contention was repelled on the facts found, namely, that the petitioner 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 and such declaration may be made as regards any particular general or district court-martial held in a particular place etc. The question of validity of this Rule was kept open. Frankly, there is some force in the contention of Mr. Tarkunde that once having found that 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 right under Art. 22 and, therefore, the question 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 court may proceed on the basis that the request as claimed on behalf of the accused in that case was made and turned down and yet the accused could not in that case complain of contravention of Art. 22 of the Constitution and this contention were in terms answered. If in this context the observation can be said to be obiter, it is nonetheless 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 contention afresh. It was urged that what Art. 33 protects is an Act made by p the parliament and not subordinate legislation such as the Rules and the regulations. Section 191 confers power on 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 purposes of the Act other than those specified in s. 191. Section 193 provides that all Rules and Regulations made under the Act shall be published in the official gazette and on such publication 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 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 416 of Mines & Anr. v. Lala Karam Chand Thapar etc.,(l) a Constitution Bench of this Court examined the position- of rules or regulations 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 character as rules and regulations, even though they are to be of the same effect as if contained in the Act. They continue to be rules subordinate to the Act, and though for certain purposes, including the purpose of construction, they are to be treated as if contained in the Act, their true nature as subordinate rule is not lost." The same question came up before a Constitution Bench in Kali Pada Chowdhury v. Union of India (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 the expression is used, If the expression were to mean that the rules or regulations enacted or framed in exercise of the power to enact subordinate legislation having the same force as the provisions 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 subordinate legislation would also be immune from the challenge to its validity. In institute of Patent Agents v. Lockwood,(3) Lord Harschell was of the opinion that the expression 'as if enacted in this Act' would render the subordinate legislation as completely exempt from judicial review as the statute itself. However, in R. v. Minister of Health, ex-parte Yaffe,(4) there was some disinclination to accept Lo
