25 August 1982
Supreme Court


Bench: DESAI,D.A.
Case number: Writ Petition (Civil) 4903 of 1981








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 subserve  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 subserve 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 referable 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 hf 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 cf 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 peti- tioner. 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.  How ever,  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]

JUDGMENT:      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 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 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. Ist 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 an 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 triable 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  coufers power  on the criminal court to require the officer  who has decided to use his discretion in favour 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 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 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 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  evidecne 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 objec- 409 tion 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 expositio 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- af  India & ors (l) 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  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. Proceeding  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  was  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  lndia,(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 lnstitute 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  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. 101(3)  of the  Patents, Designs  and Trade Marks Acts of 1883 and 1888 would be subject to control of Parliament and, therefore, Parliament  was in  control of  the rules  for 40 days after  they were passed and could have annulled them on a motion to 417 that effect,  and that  would permit  an inference that they had same  strength and  validity as  the provisions  of  the statute itself.  Distinguishing this  position  in  Yafffe’s case it  was noticed  that there was no parliamentary 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,(l) the conflict between the view  of Lord  Harschall in Lockwood’s case and the view of Lord  Dunedin in Yaffe’s case was noticed 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 1937 to  bring the earlier regulation in conformity with the intendment of  the Act.  It would, however, appear that this ancient formula  often resorted  to, to  clothe  subordinate legislation with  the force of the provisions 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 rather 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  seems  to  the      convening officer practicable, of officers of different      corps or  departments, 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 than that of      the officer  p unless,  in the opinion of the convening      officer, officers  of much  rank are  not  (having  due      regard  to   the  exegencies  of  the  public  service)      available. Such  opinion shall  be  re  corded  in  the      convening order.           (3) In  no case shall an officer below the rank of      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 of the Central Government, the Chief of Army Staff or by any officer empowered  in this behalf by warrant of the Chief of Army Staff. 418 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 case 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 other 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  exclusively of officers of the corps or department to which the accused belongs. There is a further requirement 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 Solicitor-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 ’prescribed’ means prescribed by rules made  under the Act. Rule 187 bears the marginal note: ’Corps prescribed  under section 3(vi). Each of 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 Il and Ill of the Act. Sub- rule  (3) provides that for the purposes of every other



provision-H i.e.,  other than  Chapter III  and s. 43.(a) of the Act  and Chapters  Il and  III of  the Rules-each of the body of persons set out in sub -clauses (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; 419 (c) every  regiment of cavalry, armoured corps or artillery: (d) every  squadron or battery which does 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 t unit composed wholly or partly  of persons  subject to the Act. To understand the full  import  of  the  expressions  ’battalion’,  ’company’, ’regiment’, ’squadron’  or ’battery’,  it was  imperative to understand -  the hierarchy  and vertical  formations in the Army.  National  security  demands  that  on  country  would disclose its  Army formations. But on the basis of the broad information available,  a  chart  roughly  showing  vertical hierarchy  with   horizontal  equation   was   composed   to understand the meaning of the aforementioned expressions: C      Supreme Commander     = President of India      Chief of Army Staff   = Chief of Army Staff           Command                = GOC-IN-C Commanding                                    officer Army Corps Army Corps Army Corps Army Corps =Lt. Gen. Division Division Division Division =Maj. Genl. Brigade Brigade Brigade Brigade = Brigadier. Battalion Battalion Battalion Battalion =Lt. Col. (In Inf2ntry) Regiment in Cava]ry. Company Company Company Company = Major (In Infantry, Battery or Squadron in Cava]ry. - G      President is the Supreme Commander of Armed Forces [See Article 53(2)].  Under him  is the Chief- of Army Staff. The Indian Army  is divided  into five  commands being Northern, Central, Western,  Eastern and  Southern Commands. Each area command has  under lt static formation areas, sub-area, etc. and fighting for- 420 mation army  corps: for example, the Western Command is said to have  three army  corps. Corps  in this  sense means army formation. Speaking  generally, each  army corp, 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. Col., each battalion is divided in three or four companies  in  case  of  Infantry  and  three  or  four Batteries or Squadron in the case of cavalry, each such unit being led by an officer of the rank of a Major.      To start  with, the  expression ’army corps’ 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 situation.  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 of  a battalion as 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 corps for the purpose of the Act and the Rules. This conclusion is 421 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 requirement would not be  part of  regular army battalion and, therefore, each has to  be designated as a corps for the purposes of the Act and the Rules. If each battalion in the infantry or regiment in cavalry would be a corps for the purposes of rule 40, the selection of personnel for composing a general court martial would not  present difficulty.  If  on  the  other  hand  as contended for the petitioners that the expression ’corps’ is an inter-changeable  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 composition of the army  as hereinabove set out is recalled for the limited purpose of  pointing out  that command  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 divided into various commands such as  Western Command,  Northern Command,  etc.  Now,  if various 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, persons from different army corps have to be selected because as far as practicable 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 exclusively of officers of the same corps. Translated into functional adaptability officers 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  martial because 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  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 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  substitute  ’army  corps’  for ’corps’ it 422 would be  wholly unworkable because officers will have to be summoned from  another command  altogether. 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 of 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  sub-rule (3) of rule 187 clearly indicates that  the lowest formation in the battalion or the regiment  is   corps  over   and  above  those  specifically 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 (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.      This  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 officers 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  and  such  possibility  and  to  put personnel of  general court-martial beyond reproach, to make it unbiased  and objective, composition 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 from personal likes and dislikes or  prejudice   consequent   upon   association   of   close familiarity.  People   drawn  from   ’different  corps’  and avoiding officers  of the  same corps  composing the general court-martial would  ensure an  objective, unbiased body. If this is  the underlying intendment, it is achieved by giving the expression  ’corps’ a  restricted meaning and not a wide meaning to  make it synonymous with ’Army Corps’ at the top, so that  it may  almost become  impossible  to  search  only officers belonging to different army corps and avoid meaning the court-martial  exclusively by officers belonging to same corps because  a large body pf officers would spill over the line. If on the other hand as is clearly 423 indicated by  sub-rule (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 strict compliance with rule 40. Under  a brigade  there are  number of  battalions. Each battalions would  be a  corps. Ore  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 corps  to which the accused belongs. If the accused belongs 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



conveniently summoned  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 general court  martial composed  exclusively of  officers of the corps  to which  the accused belongs. It would be unwise to reject  this construction  on the ground that it does not take note  of and  try to  avoid command  influence. Command influence is  too  vague  a  concept  to  call  in  aid  for construction  of  a  rule.  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 but it is used 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 intendment that officers composing the  court-martial must  be independent of command influence  or   influence  of  superior  officers  like  the convening officer.  This is unquestionably 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 likely  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 like the  ’command influence’ and the ’influence of superior officers’ 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, a 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 would be available  and such  officers outside  the same  corps to which an accused belongs could certainly 424 be said  to be free from command influence. But to urge that even if  the officers  of another battalion but forming part of the same brigade are-selected the Brigadier being the top 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.      Undoubtedly  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  departure  on  the ground of  practicability will,  if challenged,  have to  be proved-within   the    broad   parameters    of   functional adjustability   of    the   Army    requirements.   If   the interpretation convassed  on behalf  of the  petitioners  is accepted every  time the  soul of rule 40 will be sacrificed at the  alter 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 40 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 40 is not synonymous with the expression ’army  corps’ and  it must  receive a  restricted construction with  narrow connotation  as explained  in rule 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 opinion of the convening officer, officers of such rank are not (having due regard to  the exigencies of public service) available. Such opinion has  to be recorded in the convening order. Sub-rule (3) of rule 40 merely incorporates the mandate of s. 113. 425      Having formulated  the necessary test for examining the validity of  the composition  of general court martial it is necessary to  turn to the facts of each case in this behalf. Lt. Col.  Prithi Pal  Singh Bedi (Writ Petition No. 4903/81) was holding  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  relevant  time.  The general court-martial set up to try him was composed of five officers. They  are: Brigadier  Kalkat, an  officer in  rank higher than  the petitioner,  Lt.  Col.  Khullar,  Lt.  Col. 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. Yadav  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  the 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  of  a Captain. Of  the seven  officers composing the court martial the senior-most  is a  Brigadier the next in rank is holding 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 petitioner. Petitioner at the relevant time  belonged to  25 Infantry  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 1 5th 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.  therefore, there  is no  violation  of rule 40. 426      The  petitioner   Capt.  Chander   Kumar  Chopra  (Writ Petition No.  5930/80) has  alleged in  his petition that he belongs to  the 33 corps and that each such corps is divided into divisions.  This will  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 petitioner was holding the  rank of  a Captain  and was attached to 877 At. BN. ASC c/o 99 A.P.O.. There is not one word 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, a even in this case there is nothing to show that rule 40 has been violated.      It  would   be  advantageous  at  this  stage  to  call attention to  the provision  contained in section 130 of the Act and  rules 41 to 44 of the Rules. When either a general, district or  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 court martial to the accused and he 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 objection and the reply there to of the officer objected to  shall  be  heard  recorded  and  the  remaining officers of the court shall 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 the  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 out 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 cast on the court itself  to ascertain  whether its  constitution is  in accordance with  the Act  and the rules. Rule 42 cast a duty on the  court to satisfy itself that the person who is to be tried is amenable to the provisions of the Army Act and that each charge framed against him discloses an offence 427 under the  Act and  is framed  is accordance with the rules. Then A  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 the court, the order convening the court  and the  names of  the presiding  officer and the members of  the court shall then be read over to the accused and he shall be asked as required by section 1 30 whether he has any  objection to  being tried by any officer serving in the Court.  Whenever an  objection is  taken it  has  to  be recorded, 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 shall state the names  of all officers constituting the court in respect of whom  he  has  any  objection  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  because once such an objection is taken no one  shall be  competent to  decide  the  objection.  The provision conferring  a right  on the accused to object to a member  of   the  court-martial  sitting  as  a  member  and participating in the trial ensures that a charge of bias can be  made   and  investigated   against  individual   members composing the court-martial. 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.  Sanghi inviting us  to examine the merits of the charge against Lt. Colonel Bedi  should 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  validity of  general court  martial set  up in each of  these cases,  we may  now turn  to certain specific contentions raised in each petition. 428 In re. W.P. 4903/81:      Mr. Sanghi,  learned counsel  for the  petitioner urged that pre  condition 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:      (1)  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 any witness against           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 in his 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  with,  he  shall           without unnecessary delay.           (a)  dispose of  the case  summarily under section                80 in  accordance with the manner and form in                Appendix III;  or           (b)  refer  the   case  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  his trial by a summary 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 active service a summary 429 general court-martial  for the trial of the alleged offender unless A either-      (a)  the offence  is one  which he can try by a summary



         court  martial   without  any  reference  to  that           officer; or      (b)  he  considers  that  there  is  grave  reason  for           immediate action and such reference cannot be made           without detriment to discipline.      23.  Procedure for taking down the summary of evidence-      (1)  Where the  case is  adjourned for  the purpose  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 the accused           before the  commanding officer  or such officer as           he directs.      (2)  The accused  may  put  in  cross-examination  such           questions as he thinks fit to any witness, and the           questions together  with the answers thereto shall           be added to the evidence recorded.      (3)  The evidence  of each  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 recorded.  After           all the  evidence against  the  accused  has  been           recorded; the  accused will be asked: "Do you wish           to make any statement ? You are not obliged to say           anything unless  you wish  to do  so, but whatever           you say  will be  token down in writing and may be           given 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. 430      (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 may  be,  does  not  understand  the  English           language, the  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 owing 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  be certified  by  him  in           writing), be readily procured, a written statement           of his evidence purporting to be signed by him may           be read to the accused and included in the summary           of evidence.      (6)  Any witness who is not subject to military law may           be summoned  to attend  by order under the hand of           the commanding officer of the accused, The summons           shall be in the form provided in Appendix III.      24.  Remand of  accused: (I) The evidence and statement           (if any)  taken down  in writing  in pursuance  of           rule 23  (hereinafter referred  to as the "summary           of  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-hear  the case 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 summary court-           martial (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 431           apply to  the proper military authority to convene a A court-martial, as the case may require.      25.  Procedure on  charge against officer: (I) 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, be  taken in his 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-martial 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 provided 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 hear  the  charge  made  against  the accused in his presence giving an opportunity to the accused to cross-examine  any witness  against him  and to  call any witness and  make any  statement in  his defence and that if the commanding  officer is  so satisfied  he can ’.. dismiss the charge as provided in sub-rule (2) of rule 22. If at the conclusion of  the hearing  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 suchbeing toadjourn the caseforthe - . 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, inter  alia, provides  recording of  the evidence of  each witness,  opportunity to  the  accused  to cross-examine each  such witness, etc. Rule 24 provides that the summary  of evidence  so recorded shall be considered by the commanding  officer who  at that  stage has  again three courses open  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  he  thinks  it desirable, re-hear the case and either dismiss the charge or dispose -  it of summarily. It was urged that in case of the petitioner Lt. Col.Bedi, the commanding officer did not hear the charge  in his  presence that  no direction to prepare a summary of evidence in which he 432 could participate  was given and that without complying with the mandatory  requirements of  rules 22  and 23 a direction has been  given to  convene the  court-martial  to  try  the petitioner. Rules  22 to  24 are  mandatory in  respect . Of every person  subject to  the Act  other  than  an  officer. Therefore, the  requirements of  rules  22  to  24  are  not mandatory 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  reguires it,  be held,  and the evidence, if  he so  requires, be  taken in  his 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. The  opening words  of rule 22 clearly derr.onstrate  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 he  required, shall  be held  and the evidence, if  he requires shall be held aDd the evidence, if requires it,  shall be taken in his presence. The 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 make 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. Petiti-oner 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 nor could be cross- examine the  witnesses and  make his submissions. He further stated that no charge-sheet was given to him. He has averred that the  order dated  November IO,  1980, for  taking  down summary of  evidence is  void and illegal as it is violative of Rule  23 cf  the Rules. Mr. Sanghi contended that failure to comp1y  with rules  22, 23  and  24  has  denied  to  the petitioner an  opportunity first  to convince the commanding officer to  dismiss the charge under sub-rule (2) of rule 22 and even  if he  could not  have  persuaded  the  commanding officer to  dismiss the charge after the summary of evidence was  recor(led,  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 trial by general  court   martial.  Nowhere   in  the   petition  the petitioner has specifically 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 if an officer wants rules  22 and 23 to be complied with, he has to make a request in  that behalf  and tbat  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 2S, failure to comply  with rules  22, 23  and 24  would not vitiate the trial by  the general  court-ma.tial. Rex v. Thomson,(l) was relied upon  to buttress the submission that there has to be hearing of  the charge  by the  officer  Commanding  in  the presence  of  the  offender  and  the  offentler  should  be afforded full opportunity to be 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, 1881.He was  thus a  person other than an officer subject to the Army  Act aDd the mandate of rules 22 and 23 in his case would have applied in all its rigour but as has been pointed out tbe  petitiooer 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 CODtention.      Incidentally it  was urged  that to  the extend rule 25 erodes  mandatory  compliance  with  principles  of  natural justice as  adumberated in  rules 22,  23 and 24 it would be violative of  fundameDtal rights guaranteed uDder Article 21 of the Constitution and 434 would be  ultra vir.?s  the Constitution. Referring to Lee v Showmen’s Guild  of Great  Britain,(l)  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 iustice  enacted in  rules 22, 23 and 24 depends for its applicability upon the demand by tbe 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  abrogate  any  of  the  rights conferred  by   Part  III   of  the  Constitution  in  their application to  the members  of the  Armed Forces  so as  to ensure the  proper discharge  of duties  and maintenance  of discipline  amongst   them.  The   Act  is   one  such   law aad,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 the view that even where the prescribed  procedure 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 1iberty except according to the procedure established by law. 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 according to such  procedure is  to be held, it is difficult to accept the submission  that such  procedure would  be violative  of Art. 21.  And as  far as  the Rules are concerned, they have made clear  distinction between  an offlcer governed by tlie Act and  any other  person subject  to tbe  Act.  Expression ’officer’ has  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 person belonging to



the upper  bracket in  the Armed Forces and any person other than an officer 435 subject to the provisions of the Act would necessarily imply persons belonging  to  the  lower  categories  in  the  army service. Now,  in respect  of such  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 except on the pain of invalidation of the inquiry. But when it comes to an officer, a  person belonging  to the  upper   bracket in the armed forces  the necessary  presumption being  that he is a highly educated,  knowledgeable, intelligent person, compli- ance with  rules 22,  23 and  24 is not obligatory but would have to  be J . complied with if the officer so requires it. This is  quite rational  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  h 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, f New Delhi & orS.,(l) 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 must comply with  the minimum requirements of natural justice and that if  observance  of  natural  justice  in  the  area  of administrative decision making so as to avoid devaluation of the   principle   by   administrators   already   alarmingly insensitive to the rationale of audi alterm partem" that one can ever  look upon  with equanimity  where  this  principle gives way  before a  tribunal charged . P 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 entire procedure one can say confidently that this simplicity is merely skin deep." Rules ’’2, 23  and 24  prescribe participation at a state prior to the trial  by the  court martial.  Undoubtedly, fairness  in action and natural justice have been developing very much in recent years and if the power of the executive increases the courts have developed the doctrine in an 436 evolving way  so a  striking out expendition is perilous.(l) By rejecting  the contention  a striking  expedition of this wholesome principle  is 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 charge 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 suggested  that it  is unfair  to  launch  a criminal prosecution  without first hearing the accused (see Lord Salmond  in Cozens  v. North  Doven Hospital Management



Committee(a).  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 trial by the court martial  the irregularity  emanating from non-compli - ance with  rules 22,  23 and  24 would not vitiate the order convening the court-martial. Reliance was placed on Major G. Barasay v.  The State  of Bombay,(3)  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  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 the  conclusion  that  the  non  observance  of  the conditions prescribed  in  the  priviso  to  s.  5A  of  the Prevention of  Corruption Act  had resulted  in  failure  of justice. 437 This Court  agreed with  this conclusion. Drawing sustenance from this  conclusion it  was urged that irregularity in the course of investigation, if any, 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  inaction  or omission in  that behalf  would have  no impact on the order convening the court-martial.      Reference was also made to Flying Officer S. Sundarajan v.Union of India & ors. ,(’) where a Full Bench of the Delhi High Court  held that any error or irregularity in complying with tho  procedure prescribed  by rule IS of the Indian Air Force Rules  which is  in pari  materia with  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  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 bonafides 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 means be regarded as affecting the jurisdiction of the court to proceed  with the  trial. Jurisprudentially  speaking the view  expressed  is  that  Rule  15  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 on account of the  failure of  the  petitioner  to  insist  upon  their compliance 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  court  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 438 any statement  or giving any evidence he may wish to make or give and  of cross-examining  any witness  whose evidence in his opinion affects the character or military reputation and producing  any  witness  in  defence  of  his  character  or military reputation.  There are  some provisions  in the Act which order  setting  up  of  a  Court  of  Inquiry  in  the circumstances and for the purpose set 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 necessary and permisible under the Act  to impose  a collective  fine it  can be done after obtaining the  report of  a  court  of  inquiry  which  will presage an  appointment  of  a  such  a  court  of  inquiry. Similarly, section  106 comprehends  the  appointment  of  a court of inquiry when any person subject to the Act has been absent from  his duty  without due authority for a period of 30 days, and 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 the person belongs shall enter in the court-martial book  of the  corps or  department a record of the declaration.  A reference  to these  two sections  would show that  where action  can 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 no 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 any 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 whenever 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 court of inquiry. Court of inquiry 439 by its  very nature  is  likely  to  examine  certain  issue generally  concerning   a  situation   or   persons.   Where collective fine is desired to be imposed, a court of inquiry may generally  examine the  shortfall to  ascertain how many persons are  responsible. In  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 directed against the  person   whose  character  or  military  reputation  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 provision  to ensure  such  participation.  But  it cannot be  used to say that whenever in any other inquiry or an inquiry  before a  commanding officer  under rule 22 or a convening officer  under rule  37 of  the trial  by a  court martial, character  or military  reputation 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  adequate opportunity to  defend himself.  Rule 33 ensures preparation for defence  by the  accused person.  He has a right to call witnesses in  his defence.  The limited grievance is that by his letter  dated  November  11,  1980,  he  requested  that documents 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 dated  November 14, 1980, the petitioner  requested to  supply him  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  that  the procedure prescribed  for trial of sessions cases in Chapter XVIII of  the Code  of Criminal Procedure when compared with the procedure  prescribed  for  trial  by  a  general  court martial there is very little deviation or departure and H 440 more or  less the  procedure appears  to be  fair, just  and reasonable, Dr. O. P. Sharma, Judge-Advocate-General, Indian Army, in  his Military 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 the ordinary criminal courts. He points out two demerits, viz., a  distinct possibility  of a  successive trial  by  a criminal 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 1979 and 5930 or 1980:      Save and  except the  contention as  to the validity of the com-position  of the  court martial  no  other  specific contention was raised in these two 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 of the 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 be  a citizen  so  as  to  wholly deprive him  of his  rights under  the Constitution. More so when this  Court held in Sunil Batra v. Delhi Administration  & 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 to create a class of citizens not  entitled to the benefits of the liberal spirit of the Constitution. Persons subject to Army Act are 441 grity and  wholly  unbiased.  A  marked  difference  in  the procedure A  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  procedure  of  trial  in  the ordinary  criminal  courts,  we  must  recall  what  Justice William O’Douglas  observed ’that  civil trial is held in an atmosphere conducive  to the protection of individual rights while a  military trial  is marked  by the  age-old manifest destiny  of  retributive  justice.  Very  expression  ’court martial’ generally strikes terror in the heart of the person to be  tried by  it. And  somehow or  the other the trial is looked  upon  with  disfavour.’(1)  In  Reid  v.  Covart.(2) Justice Black observed at p. 1174 as under;           "Courts-martial  are   typically  ad   hoc  bodies      appointed  by   a  military   officer  from  among  his      subordinates. They  have always been subject to varying      degrees  of  "command  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 promotions, 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 undoubtedly 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 of punishment  is  a  glaring  lacuna  in  a  country  where  a counterpart civilian  convict can prefer appeal after appeal to hierarchy  of courts.  Submission  that  full  review  of finding and/or  sentence in  confirmation  procceding  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 equally distressing in that there is not even a single 442 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 uncivilsed  days, a  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. Army is  always on  alert 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 protectors  of this  order. And it must be  realised that  an appeal  from Ceaser  to  Ceaser’s wife...confirmation proceeding  under section  153 has  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 body 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  the  gravity  of  the  offence  charged. Judicial  approach   by  people   well-  versed  inobjective analysis of  evidence trained by experience to look at facts and law  objectively, fair play and justice cannot always be sacrificed at  the  alter  of  military  discipline.  Unjust decision would  be subversive of discipline. There must be a iudicious 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  conformity  with  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 judicial review of  decisions of  court-martial. U.K.  had enacted  a Court  Martial  (Appeals)  Act  of  1951  and  it  has  been extensively amended  in Court  Martial (Appeals)  Act, 1968. Merely providing  an appeal  by itself  may not  be very re- assuring but  the personnel  of  the  appellate  court  must inspire  confidence.   The  court  martial  appellate  Court consists of  the ex-officio and ordinary judges of the Court of Appeal,  such of  the  judges  of  the  Queen’s  Bench  . Division as  the  Lord  Chief  Justice  may  nominate  after consultation with  the Master  of the  Rolls,  such  of  the Lords, Commissioners  of Justiciary  in Scotland as the Lord Chief Justice  generally may  nominate, 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 Chancellor may 443 appoint. The  court martial  appellate court  has  power  to determine any  question necessary  to be determined in order to do justice in the case before the court and may authorise a new  trial where the conviction is quashed in the light of fresh evidence.  The court  also has  power inter  alia,  to order production of documents o; exhibits connected with the proceedings, order  the  attendance  of  witnesses,  receive evidence, obtain  reports and  the like  from the members of the court  martial or the person who acted a Judge-Advocate, order a  reference of any question to a Special Commissioner for  Inquiry  and  appoint  a  person  with  special  expert knowledge to  act as  an assessor,(1)  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 provision 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 right to legally qualified counsel was made mandatory in general court-martial cases 13 years before  the decision of the Supreme Court in Grdeon v. Wainwriget,(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  not reflected  in military  court proceedings. To correct these  deficiencies the  Congress  enacted  Military Justice Act,  1968, the salient features of which are: (I) a right to  legally qualified counsel guaranteed to an accused before any  special court  martial; (2) a military judge can in certain  circumstances conduct  the trial  alone and  the accused in  such a  situation  is  given  the  option  after



learning the  identity of  the military  judge of requesting for the  trial by the judge alone. A ban has 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 not only be done but it must seem  to be  done, the  same holds  good with  all  the greater 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 subjugation  and  a feeling of bias in such circumstances is irremove- 444 able .  We, therefore, hope and believe that the changes all over  the  English  speaking  democracies  will  awaken  our Parliament to  the changed  value system. In this behalf, we would like  to draw  pointed attention  of the Government to the glaring  anomaly 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 sentence. 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. 445