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CASE NO.: Special Leave Petition (civil) 7347  of  1999

PETITIONER: UNION OF INDIA & ANR.

       Vs.

RESPONDENT: CHARANJIT S. GILL & ORS.

DATE OF JUDGMENT:       24/04/2000

BENCH: G.B. Pattanaik, R.P. Sethi & Shivaraj V. Patil.

JUDGMENT:

SETHI, J.

       Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J     Finding that the Judge Advocate was lower in rank to the accused   facing  trial  before  a  General  Court   Martial (hereinafter  referred  to as "GCM"), the Division Bench  of the  High  Court set aside the order of the Trial Court  and the  entire Court Martial proceedings conducted against  the respondent  No.1.   The  Bench, however, observed  that  the quashing  of the proceedings of the GCM will not prevent the authorities  concerned  to  initiate   fresh  court  martial proceedings  if  they are so advised in accordance with  law and  also  in the light of the judgment delivered.   Feeling aggrieved  by the aforesaid judgment the present appeal  has been  filed  with  a prayer for setting aside  the  impugned judgment  and upholding the order of the GCM as well as  the learned Single Judge.

   The  relevant and almost admitted facts for  determining the controversy in this appeal are that the first respondent joined the Indian Army as a Commissioned Officer in 1971 and was promoted to the rank of Major in 1984.  He was posted at Fort  William, Calcutta in April, 1990.  While attached with 235  IWT company, Engineers, the respondent No.1 was alleged to  have  absented himself without leave on  four  occasions which  was  an offence under Section 39(1) of the Army  Act. He  was  also charged under Section 63 of the Army  Act  for violation  of good order and military discipline.  A GCM was convened  by  the General Officer Commanding  (GOC),  Bengal Area  by  his  order dated 23rd December, 1991.   The  court martial comprised of Col.Rabinder Bahadur Singh as Presiding Officer  and  Col.  Kunjachen Puthenveetil  Sebastian,  Col. Prakash  Nambiar, Col.  Mahitosh Deb and Major Kadam  Netaji Kesharuo  as  Members.   Capt.  Vashishta  Arun  Kumar,  Dy. Assistant  Judge  Advocate  General was appointed  as  Judge Advocate  in the court martial proceedings.  The  respondent No.1 was found guilty of four out of five charges by the GCM and  was  sentenced  to forfeit six months service  for  the purposes of promotion.  The order of conviction and sentence

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was,  however,  made  subject  to the  confirmation  by  the Confirming   Authority   to  whom   the   proceedings   were transmitted  by the GCM in terms of Section 153 of the  Army Act.   The  Confirming  Authority  felt  that  the  sentence awarded  to  the  respondent  No.1 by the  GCM  was  grossly inadequate  and  inappropriate which required  review.   The order  of  the  Confirming   Authority  dated  2.5.1992  was conveyed   to   the   GCM     which   on   19.5.1992   upon, re-consideration  revoked the earlier sentence and passed  a fresh  order  of sentence of dismissing the respondent  No.1 from  service.   This  order  was   also  made  subject   to confirmation by the Confirming Authority.

   Aggrieved by the order of conviction and sentence passed by the GCM, the respondent No.1 filed writ petition being CO No.7102(W)  of  1992 in the High Court at  Calcutta  praying therein  for  quashing orders dated  23.12.1991,  10.2.1992, 2.5.1992  and  19.5.1992.  At the time of admission  of  the writ  petition  a  learned Single Judge of  the  High  Court passed  an  interim  order on 29th May, 1992  directing  the appellants  not  to confirm the impugned order of  dismissal and  not to take any steps against respondent No.1,  without the  leave  of the Court.  The interim order  was,  however, vacated  by the learned Single Judge on 16.12.1996  allowing the   Confirming  Authority  to   complete  the  process  of confirmation  and passing appropriate orders.  Consequently, the  GCM  proceedings were confirmed on 17.12.1996  and  the respondent  No.1  was dismissed from service on  18.12.1996. The  writ  petition  filed  by   the  first  respondent  was dismissed  by  the learned Single Judge on 3rd  July,  1997. Feeling  aggrieved  by  the judgment of the  learned  Single Judge  the  respondent  No.1   preferred  appeal  being  MAT No.2181/97  before the Division Bench which was allowed vide the order impugned in this appeal.

   In  his  writ petition the respondent No.1 is stated  to have  alleged that in the year 1987-88 when he was posted as@@               JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Garrison  Engineer  in  Jammu  &  Kashmir  State  under  the@@ JJJJJJJJJJJJJJJJJJJJJJ Northern  Command,  he  had  pointed   out  to  the   higher authorities  some embezzlement instances involving  Rs.22.49 lacs  in which Major S.K.  Datta and Col.  S.C.  Gulati were allegedly   involved.   He  alleged   that  because  of  his reporting  the case of embezzlement he incurred animosity of the  persons  in  the  higher  echelons  of  the  Army.   He submitted  that  in  the  year 1990 he  had  made  a  direct complaint to the Chief of the Army Staff, Army Headquarters, New  Delhi with regard to the aforesaid embezzlement  which, according  to  him, generated further feelings of  animosity and  ill-will  against  him.   He was attached  to  235  IWT Company  on 14th September, 1990 and allegedly not given any duty  after  attachment to the said unit.  On 22nd  October, 1990,  the Commanding Officer of 235 IWT Company called upon the respondent No.1 to produce the evidence by 25th October, 1990 in connection with his allegations of embezzlement.  At that time the Company to which he was attached was stationed at  Alambazar, near Dakshineswar, just outside Calcutta  and his  family was residing at Fort Williams, Calcutta.  He was served  with a chargesheet on 18th November, 1991 signed  by the  Commanding Officer, 121, Infantry Battalian (TA)  which was endorsed by the General Officer Commanding, Bengal Area. Though  the  respondent No.1 was posted to 235  IWT  Company

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vide  order  dated 12th September, 1990 he was  attached  on 23rd  March, 1991 under the provisions of Army  Instructions 30  of 1986 to 121 Infantry Battalion (TA) till finalisation of  the  disciplinary proceedings which had  been  initiated against  him.   The charge-sheet dated 18th  November,  1991 disclosed  the commission of offences punishable contrary to Sections  39(a) and 63 of the Army Act.  The respondent No.1 in his petition had prayed for quashing and setting aside of orders  dated  23rd December, 1991 convening the GCM,  order dated 10th February, 1992 finding the respondent No.1 guilty and  imposition of the sentence by GCM, order dated 2nd May, 1992  exercising the revisional jurisdiction by the GOC,  BA and order dated 19th May, 1992 revising the initial sentence and  dismissing  the  respondent  No.1  from  service.   The grounds of challenging the aforesaid orders were as under:

   "1.   The  composition of the GCM, as was determined  by the Convening Order dated 23rd December, 1991 was bad in law because Captain Arun Kumar Vashistha was not qualified to be appointed  as a Judge Advocate in the said GCM.  This ground of  challenge  is  based on two counts, firstly  because  no officer  of a rank inferior to the accused can be  appointed as  a Judge - Advocate in GCM and secondly the participation of  the  Judge-Advocate in the proceedings held on 18th  and 19th  May,  1982  upon  revision was bad since  he  was  not entitled  to  take  part  in   the  proceedings  after  10th February, 1992 when the GCM proceedings had originally stood concluded.

   2.   GOC,  BA had no jurisdiction to either convene  the GCM  vide his order dated 23rd December, 1991 or to pass the order  dated  2nd  May, 1992, as he was neither  a  properly appointed  nor a properly designated Convening Authority for the  purposes  of  convening a GCM nor could  he  be  deemed considered  to be a legally and validly appointed conforming authority  for  the purposes of exercising the  power  under Section  160  of the Army Act.  In either event, his act  of convening  the GCM was illegal and therefore the proceedings of  the  GCM on that ground were void ab initio.   Similarly since  he  did  not  have  any power  to  act  a  confirming authority,  he  had  no jurisdiction to exercise  any  power under  section 160 of the Army Act and order revision of the sentence.   Reliance  was placed upon Regulation 472 of  the Regulations for the Army in support of this contention.

   3.  The order dated 2nd May, 1992 was bad in law because while  exercising revisional jurisdiction under Section  160 of  the  Army Act, the GOC, BA not only expressed his  views and  opinion  about  the merits of the case  but  the  order amounted  to  almost a direction upon the GCM, and  the  GCM comprising,  as it were, of the officers subordinate to GOC, BA  had no option but to revise the sentence, as was desired by GOC, BA.

   4.   GOC,  BA  was  also not  an  appropriate  Convening Authority  for  the  purposes  of convening  a  GCM  as  the petitioner  was not serving under him.  Since the petitioner was  serving  in the Head Quarter, Eastern Command,  it  was only GOC-in-C who could be considered to be the appropriate, convening  authority  in  respect  of  the  petitioner   for convening a GCM.  Merely because the petitioner was attached to  a  unit which was under the control of GOC, BA, that  by itself  did  not make GOC, BA the duly  appointed  convening

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authority for convening a GCM.  Reliance was placed upon the contents  of warrant A-1 appointing GOC, BA and GOC-in-C  as respective convening authorities.

   5.   The sentence of dismissal for a minor offence  like being  absent  without leave, and for committing an  offence under  section  63  of the Army Act was highly  and  grossly disproportionate to the gravity of the offence.  Even if the proceedings of the GCM and the finding of "guilty" was to be upheld  by this court, the initial sentence of forfeiture of six  months  of service for the purpose of promotion  was  a reasonable punishment in the facts and circumstances of this case.

   6.   Distinction has to be drawn between "absent from  a place"  and  absence  from duty" because in  the  facts  and circumstances  in  which  the  petitioner  was  placed,  the petitioner  was  not allocated or entrusted with any  duties and  therefore  if he absented from a place,  without  there being  any  duty that he was to perform, Section 39  of  the Army Act could not be attracted in his case and therefore he could  not  be held guilty of the charges  levelled  against him.

   7.   The  appropriate  Confirming  Authority  have  been prescribed in Regulation 472 and even though this Regulation is  not statutory in character and has not been issued under Section  192  of  the  Army  Act, yet  it  amounting  to  an executive  instruction  has  the  force   of  law  and  thus supersedes  the  warrants issued by the  Central  Government under  Section 164 of the Army Act.  The contention is  that the  authorities  prescribed  in Regulation  472  alone  are competent  to act as confirming or convening authorities and that  the  authorities appointed under the warrants  by  the Central  Government in exercise of the powers vesting in its under Section 154 have no jurisdiction to act as such.

   8.   The order dated 17th December, 1996 is bad  because it   was   passed  without   affording  the  petitioner   an opportunity    of    submitting    a    pre-    confirmation representation,  as  was  directed  by this  court  on  16th December, 1996."

   None of the grounds found favour with the learned Single Judge  who  after hearing dismissed the writ petition.   The respondent No.1 was, however, given two weeks time to vacate the  accommodation  occupied  by  him  upon  his  giving  an undertaking.   The appeal filed against the judgment of  the learned Single Judge was allowed holding:  "However, without deciding  any  other  point  we  are  of  the  view  that  a Judge-Advocate  being  lower in rank to an  accused  officer should not be able to take part in the general court-martial proceedings for the above reason."

   Mr.Rawal,  the  learned   Additional  Solicitor  General appearing  for the appellants has vehemently argued that  as the  Judge Advocate is only a Legal Advisor and not a member of  the  Court Martial, his rank is not material  for  being appointed  as  such  to  assist  the  GCM.   It  is  further contended  that  under the Army Act, Rules  and  Regulations made  thereunder, there was no obligation for the appellants to  appoint a Judge-Advocate who should have been senior  in rank  to the accused on the analogy that the members of  the court  martial  who tried the accused are required to be  of

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the  same or higher rank to the accused officers.  According to  him  there are separate provisions under the Act,  Rules and Regulations for members and Judge-Advocate at GCM laying down  their  eligibility,  disqualifications,  duties,  etc. Relying  upon  Note  2  attached to Rule  102,  the  learned counsel  has submitted that the disqualification for being a Judge-Advocate in a court martial is referable to Rule 39(2) alone which cannot be stretched further to Rule 40(2) of the Rules.   It is contended that the Division Bench of the High Court  has  not  properly   interpreted  the  provisions  of Sections  113 and 129 of the Act and Rules 39, 40 and 102 of the Army Rules.  Appearing for the respondent No.1 Mr.Ranjit Kumar,  Advocate has submitted that the combined reading  of@@                      JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Rules   39,  40  and  102  makes   it  clear  that  if   the@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Judge-Advocate  is lower in rank than the accused facing the trial  in  GCM,  the proceedings are liable to  be  quashed. According  to him the provisions of Rule 39 read with  Rules 40  and  102  of  the Army Rules leave  no  doubt  that  the Judge-Advocate  appointed for the trial of an officer by the GCM  should  be  a rank not lower than that of  the  Officer facing the trial.  He has submitted that though, technically the  Judge-Advocate is an Advisor to the prosecution, yet in practice he wields a great influence upon the verdict of the court in view of the powers conferred upon him under the Act and  the  Rules.   He  has   specifically  referred  to  the provisions  of  Rules  60, 61, 62 and 105 of  the  Rules  to emphasise  the  importance of the role played by the  Judge- Advocate  during the trial in a court martial.  In order  to appreciate  the rival contentions of the learned counsel for the  parties  it  is necessary to take note of some  of  the relevant   provisions  of  the  Act,   the  Rules  and   the Regulations  made  thereunder.  The Act was enacted on  20th May,   1950  and  enforced  w.e.f.    22nd  July,  1950   to consolidate  and amend the law relating to the Government of the  regular  Army keeping in view the report of the  Select Committee appointed for the purpose.  Prior to the enactment of  Army Act, 1950, there existed the Indian Army Act,  1911 made  and applied by the British Rulers.  Feeling that  some of the provisions of the 1911 Act had become out of date and insufficient  for modern requirements after independence,  a need  for  revision was felt to have become  imperative  for obvious  reasons.   However,  the scheme of the Act  by  and large  remained  the same as was incorporated in  Army  Act, 1911.   The Act has been found to be suffering from  various draw-backs  as  were  pointed out by this Court  in  Lt.Col. Prithi  Pal Singh Bedi vs.  Union of India & Ors.  [1982 (3) SCC  140].   This Court hoped and stressed that changes  all over  the  English  speaking democracies  would  awaken  the Parliament  to  the  changed  system as  regards  the  Armed Forces.   Merely  by joining the Armed Forces a person  does not cease to be a citizen so as to be wholly deprived of his rights  under  the Constitution.  While dismissing the  writ petitions  in that case, this Court noticed with anguish and concern  and  observed:  "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  [1979  (1) SCR  394]  that  even

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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  wisdom  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 citizens  of this  ancient  land  having a feeling of  belonging  to  the civilised   community  governed  by   the   liberty-oriented constitution.  Personal liberty makes for the worth of human being  and  is  a cherished and prized  right.   Deprivation thereof  must  be  preceded  by   a  judge  of  unquestioned integrity  and wholly unbiased.  A marked difference in  the procedure  for trial of an offence by the criminal court and the court martial is apt to generate dissatisfaction arising out  of  this  differential treatment.  Even  though  it  is pointed  out that the procedure of trial by court martial is almost  analogous to the procedure of trial in the  ordinary criminal  courts,  we  must   recall  that  Justice  William O’Douglas  observed:   "[T]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." In Reid v.  Covert {1 L Ed  2d 1148:   354 US 1 (1957)] Justice Black observed at page 1174 as under:

   Court 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 marital  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 of 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  of 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 proceedings 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  counter productive  but the converse is equally distressing in  that there  is  not  even  a single judicial  review.   With  the expanding   horizons  of  fair  play   in  action  even   in administrative  decision, the universal declaration of human rights  and  retributive  justice  being  relegated  to  the uncivilised 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 suppressing  internal  disorder  so  that  the  peace-loving

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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 proceedings 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  in   objective analysis  of evidence trained by experience to look at facts and  law objectively, fair play and justice cannot always be sacrificed  at  the  altar of military  discipline.   Unjust decision would be subversive of discipline.  There must be a judicious  admixture  of both.  An 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 necessitates a second look so as   to  bring  in  it  conformity   with   liberty-oriented constitution  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  (Appeal)  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 reassuring  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 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 has also power inter alia,  to  order production  of  documents  or 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 as Judge-Advocate, order  a reference of any question to a Special Commissioner for  Enquiry  and  appoint  a  person  with  special  expert knowledge to act as an assessor (Halsbury’s Laws of England, 4th Edn., paras 954-955 pp.  458-59).  Frankly the appellate court  has  power to full judicial review unhampered by  any procedural claptrap.

   Turning  towards the U.S.A., a refernece 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 guaranteed  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 Gideon v. Waiwright  (372  US 335 1963)).  Between 1950 and 1968  when the Administration of Justice Act, 1968 was introduced, many

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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:   (1)  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 don the same dress, have the same   mental  discipline,  have   a   strong   hierarchical subjugation  and a feeling of bias in such circumstances  is irremovable.   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 of 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."

   Despite   lapse  of  about   two  decades  neither   the Parliament  nor  the  Central  Government  appears  to  have realised  their constitutional obligations, as were expected by  this Court, except amending Rule 62 providing that after recording  the  finding in each charge the Court shall  give brief  reasons  in support thereof.  The Judge-Advocate  has been  obliged  to  record  or caused to  be  recorded  brief reasons  in the proceedings.  Even today the law relating to Armed  Forces  remains static which requires to  be  changed keeping  in  view  the observations made by  this  Court  in Prithi  Pal  Singh Bedi’s case (supra),  the  constitutional mandate  and  the  changes   effected  by  other  democratic countries.   The time has come to allay the apprehension  of all  concerned that the system of trial by court martial was not  the arch type of summary and arbitrary proceedings.  In the  absence of effective steps taken by the Parliament  and the  Central Government, it is the constitutional obligation of  the  courts in the country to protect and safeguard  the constitutional  rights of all citizens including the persons enrolled in the Armed Forces to the extent permissible under law  by not forgetting the paramount need of maintaining the discipline  in  the Armed Forces of the country.  The  court martials under the Act are not courts in the strict sense of the  term as understood in relation to implementation of the civil  laws.  The proceedings before court martial are  more administrative  in  nature and of the executive type.   Such courts  under  the  Act, deal with two  types  of  offences, namely,  (1)  such acts and omissions which are peculiar  to the  Armed Forces regarding which no punishment is  provided under  the  ordinary  law  of the land and (2)  a  class  of offences punishable under the Indian Penal Code or any other legislation passed by the Parliament.  Chapter VI of the Act

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deals  with  the offences.  Sections 34 to 68 relate to  the offences  of  the  first description noted  hereinabove  and Section  69  with  civil offences which  means  the  offence triable by an ordinary criminal court.  Chapter VII provides for  punishments  which  can  be  inflicted  in  respect  of offences  committed  by  persons  subject  to  the  Act  and convicted  by court martial, according to the scale provided therein.   Chapter X deals with court martials.  Section 108 provides  that  for the purposes of the Act there  shall  be four kinds of court martials, that is to say,

   (a)          general court-martial;     (b)          district court-martial;     (c)          summary general court-martial; and     (d)          summary court-martial.

   Court   martials   can  be   convened  by  persons   and authorities  as specified in Sections 109, 110, 112 and  118 of  the Act.  The procedure of court martials is detailed in Chapter  XI  of  the Act.  Section 129 mandates  that  every general court-martial shall be attended by a judge advocate, who  shall be either an officer belonging to the  department of  Judge  Advocate-General  or  if   no  such  officer   is available, an officer approved by the Judge-Advocate General or  any  of  his  deputies.   The accused  has  a  right  to challenge  the  name  of  any officer  composing  the  court martial  which obviously means that no such objection can be raised  regarding the appointment of the Judge-Advocate.  No findings  or  sentence  of a general,  district  or  summary general court martial shall be valid except so far as it may be  confirmed as provided under the Act.  Under Section 158, the  confirming authority has the power to mitigate or remit the  punishment awarded by the court martial or commute that punishment  for  any punishment or punishments lower in  the scales  laid  down  in Section 71.  Under  Section  160  the confirming  authority has the power to direct a revision  of the  finding  of a court martial and on such  revision,  the court,  if so directed by the confirming authority, may take additional  evidence.   Any person, subject to the Act,  who considers himself aggrieved by any order passed by the court martial  can present a petition to the officer or  authority empowered  to confirm any finding or sentence of such  court martial  and in that case the confirming authority may  take such  steps as may be considered necessary to satisfy itself as  to  the correctness, legality or propriety of the  order passed  or as to the regularity of any proceedings to  which the  order relates.  There is no provision for preferring an appeal against the findings of the court martial.

   In  exercise  of the powers conferred by Section 191  of the  Act the Central Government have framed the Rules called the Army Rules, 1954.  Chapter V of the Rules deals with the investigation  of  charges  and   trial  by   court-martial. Court-martials  are  convened in terms of Rule 37.  Rule  39 prescribes  ineligibility  and disqualification of  officers for court-martial.  It reads:

   "Ineligibility  and  disqualification  of  officers  for court-  martial --(1) An officer is not eligible for serving on a court-martial if he is not subject to the Act.

   (2)  An officer is disqualified for serving on a general or district court-martial if he --

   (a) is an officer who convened the court;  or

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   (b)  is the prosecutor or a witness for the prosecution; or

   (c)  investigated the charges before trial, or took down the  summary  of  evidence, or was a member of  a  court  of inquiry  respecting the matters on which the charges against the  accused  are  founded, or was  the  squardon,  battery, company,  or  other commander, who made preliminary  inquiry into  the case, or was a member of a previous  court-martial which tried the accused in respect of the same offence;  or

   (d)  is the commanding officer of the accused, or of the corps to which the accused belongs;  or

   (e) has a personal interest in the case."

   (3)  The provost-marshal or assistant provost-marshal is disqualified  from  serving  on a general  court-martial  or district court-martial.

Rule 40 provides:

   "40.  Composition of General Court-martial (1) 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 exclusive 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  unless,  in the opinion of the  convening  officer, officers  of  such  rank are not (having due regard  to  the exigencies  of the public service) available.  Such  opinion shall be recorded in the convening order.

   (3)  In  no  case  shall an officer below  the  rank  of captain  be  a  member of court-martial for the trial  of  a field officer."

   Rule  44 provides that the order convening the court and the  names  of the Presiding Officer and the members of  the court  shall  be  read over to the accused and he  shall  be asked  as  required  by  Section  130  whether  he  has  any objection  to  being  tried by any officer  sitting  on  the court.   Such  objection  when  raised  is  required  to  be disposed  of  in accordance with the provisions  of  Section 130.   The accused before pleading to a charge, may offer  a special plea to the jurisdiction of the court and if he does so,  the court shall decide it.  If the objection  regarding such  plea  is overruled, the court shall proceed  with  the trial  and if such plea is allowed, the court is required to record  its reason and report to the convening authority and adjourn the proceedings (Rule 51).  Rules 52, 53, 54, 55 and 56  deal with the recording of the plea of "guilty" or  "not guilty".  In case the accused pleds not guilty, the trial is to  commence  and  after  the  close  of  the  case  of  the prosecution,  the Presiding Officer or the Judge-Advocate is required  to  explain  to the accused that he  may  make  an unsworn statement orally or in writing giving his account of the  subject  of charges against him or if he wishes he  may give evidence as witness on oath or affirmation, in disproof of  the charges against him or any person to be charged with

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him  at  the  same  trial.  After  the  examination  of  the witnesses, the prosecutor may make a closing address and the accused or his counsel or the defending officer, as the case may  be, shall be entitled to reply.  The Judge- Advocate is authorised  to sum up in open court the evidence and  advise the  court  upon  the  law relating to the  case.   Rule  61 provides  that the court shall deliberate on its finding  in closed  court in the presence of the Judge-Advocate and Rule 62 provides the form, record and announcement of finding.

   Referring to various provisions of the Act and the Rules as  noticed  earlier,  the  learned  counsel  appearing  for respondent  No.1 has argued that in effect and practice  the Judge-Advocate is the ’court’ and the ’court-martial’ is the jury  for all practical purposes so far as the trial of  the accused  is  concerned.   The argument  may  be  exaggerated version  of the reality but is not totally without substance inasmuch  as  the  powers exercised  by  the  Judge-Advocate indicate  that though not forming part of the court-martial, he   is   an   integral   part   thereof   particularly   in court-martials which cannot be conducted in his absence.  It cannot be denied that the justice dispensation system in the Army  is  based  upon  the system  prevalent  in  the  Great Britain.   The position of the Judge-Advocate is by no means less  than  that  of  a  Judge-Advocate  associated  with  a court-martial  in that country.  The importance of the  role of the Judge-Advocate in U.K.  was noticed and considered in R v.  Linzee [1956 (3) All E.R.].

   It is true that Judge-Advocate theoritically performs no function  as  a judge but it is equally true that he  is  an effective  officer of the court conducting the case  against the  accused  under the Act.  It is his duty to  inform  the court  of any defect or irregularity in the charge and ,  in the  constitution  of the court or in the proceedings.   The quality of the advise tendered by the Judge-Advocate is very crucial  in a trial conducted under the Act.  With the  role assigned  to  him a Judge-Advocate is in a position to  sway the  minds of the members of the court-martial as his advise or  verdict cannot be taken lightly by the person  composing the court who are admittedly not law knowing persons.  It is to be remembered that the court-martials are not part of the judicial system in the country and are not permanent courts.

   The  importance  of role played by a Judge-Advocate  was noticed by this Court in S.N.  Mukherjee vs.  Union of India [1990  (4)  SCC  594]  wherein  it  was  held:   "From   the provisions  referred  to  above  it   is  evident  that  the judge-advocate  plays an important role during the course of trial  at  a  general court martial and he  is  enjoined  to maintain  an impartial position.  The court martial  records its  findings  after  the judge-advocate has summed  up  the evidence and has given his opinion upon the legal bearing of the  case.   The members of the court have to express  their opinion  as  to the finding by word of mouth on each  charge separately  and the finding on each charge is to be recorded simply  as a finding of "guilty" or of "not guilty".  It  is also   required  that  the   sentence  should  be  announced forthwith  in  open  court.  Moreover  Rule  66(1)  requires reasons to be recorded for its recommendation in cases where the court makes a recommendation to mercy.  There is no such requirement  in  other provisions relating to  recording  of findings  and  sentence.  Rule 66(1) proceeds on  the  basis that  there  is  no  such  requirement  because  if  such  a

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requirement  was  there it would not have been necessary  to make  a specific provision for recording of reasons for  the recommendation  to mercy.  The said provisions thus negative a  requirement to give reasons for its finding and  sentence by the court martial and reasons are required to be recorded only in cases where the court martial makes a recommendation to  mercy.   In  our  opinion, therefore, at  the  stage  of recording  of findings and sentence the court martial is not required to record its reasons and at that stage reasons are only  required for the recommendation to mercy if the  court martial makes such a recommendation.

   As  regards confirmation of the findings and sentence of the  court  martial it may be mentioned that Section 153  of the  Act lays down that no finding or sentence of a general, district  or  summary general, court martial shall be  valid except so far as it may be confirmed as provided by the Act. Section  158  lays  down that the confirming  authority  may while confirming the sentence of a court martial mitigate or remit  the  punishment  thereby  awarded,  or  commute  that punishment to any punishment lower in the scale laid down in Section  71.  Section 160 empowers the confirming  authority to  revise the finding or sentence of the court martial  and in  sub-section  (1) of Section 160 it is provided  that  on such  revision, the court, if so directed by the  confirming authority,  may take additional evidence.  The  confirmation of  the  finding and sentence is not required in respect  of summary court martial and in Section 162 it is provided that the proceedings of every summary court martial shall without delay be forwarded to the officer commanding the division or brigade within which the trial was held or to the prescribed officer;  and such officer or the Chief of the Army Staff or any  officer empowered in this behalf may, for reasons based on  the  merits  of the case, but not any  merely  technical grounds, set aside the proceedings or reduce the sentence to any  other  sentence which the court might have passed.   In Rule  69  it is provided that the proceedings of  a  general court  martial  shall be submitted by the judge-advocate  at the  trial  for  review to the deputy  or  assistant  judge- advocate general of the command who shall then forward it to the confirming officer and in case of district court martial it  is  provided that the proceedings should be sent by  the presiding  officer,  who  must,  in  all  cases,  where  the sentence is dismissal or above, seek advice of the deputy or assistant  judge-advocate  general  of  the  command  before confirmation.   Rule  70 lays down that upon  receiving  the proceedings  of  a  general or district court  martial,  the confirming  authority may confirm or refuse confirmation  or reserve  confirmation  for  superior   authority,  and   the confirmation,  non-confirmation,  or  reservation  shall  be entered  in and form part of the proceedings.  Rule 71  lays down  that  the  charge,  finding   and  sentence,  and  any recommendation   to   mercy  shall,    together   with   the confirmation,   non-confirmation  of   the  proceedings,  be promulgated  in such manner as the confirming authority  may direct, and if no direction is given, according to custom of the  service  and  until  promulgation  has  been  effected, confirmation  is  not complete and the finding and  sentence shall  not  be held to have been confirmed until  they  have been promulgated."

   In  view  of  what has been noticed hereinabove,  it  is apparent  that  if  a  ’fit person’ is not  appointed  as  a judge-advocate,  the proceedings of the court martial cannot be  held  to  be valid and its finding legally  arrived  at.

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Such  an  invalidity  in appointing an ’unfit’ person  as  a judge-advocate  is not curable under Rule 103 of the  Rules. If  a  fit  person possessing requisite  qualifications  and otherwise eligible to form part of the general court martial is  appointed  as  a   judge-advocate  and  ultimately  some invalidity  is found in his appointment, the proceedings  of the  court  martial  cannot  be declared  invalid.   A  "fit person"  mentioned in Rule 103 is referable to Rules 39  and 40.   It  is  contended by Shri Rawal, learned  ASG  that  a person fit to be appointed as judge-advocate is such officer who   does   not   suffer    from   any   ineligibility   or disqualification  in terms of Rule 39 alone.  It is  further contended  that Rule 40 does not refer to disqualifications. We cannot agree with this general proposition made on behalf of  the  appellant  inasmuch  as Sub-rule  (2)  of  Rule  40 specifically  provides  that members of a court-martial  for trial  of an officer should be of a rank not lower than that of  the officer facing the trial unless such officer is  not available regarding which specific opinion is required to be recorded  in  the convening order.  Rule  102  unambiguously provides that "an officer who is disqualified for sitting on a  court  martial  shall  be disqualified for  acting  as  a judge-advocate  in a court martial".  A combined reading  of Rules  39,  40  and  102  suggest that  an  officer  who  is disqualified  to  be  a  part  of  court  martial  is   also disqualified  from acting and sitting as a judge-advocate at the  court  martial.   It  follows, therefore,  that  if  an officer  lower  in  rank than the officer facing  the  trial cannot  become  a part of the court martial, the officer  of such   rank   would  be  disqualified   for  acting   as   a judge-advocate  at the trial before a GCM.  Accepting a plea to the contrary, would be invalidating the legal bar imposed upon  the  composition of the court in sub-rule (2) of  Rule 40.

   Arguments  of  the learned ASG, if analysed  critically, and  accepted  would  mean  that in effect  and  essence  no disqualification  or  eligibility  can be  assigned  to  any officer in becoming a judge-advocate.  Stretching it further it  can  be  argued that as Rule 40 does not  refer  to  the ineligibility  or  disqualification  of an officer to  be  a judge-advocate,  even an officer below the rank of a Captain can  become a member of the court martial for the trial of a Field  Officer  as  bar of sub-rule (3) of Rule  40  is  not applicable.   Such  an  interpretation is uncalled  for  and apparently contradictory in terms.

   The  purpose and object of prescribing the conditions of eligibility  and  qualification along with  desirability  of having  members  of the court martial of the rank not  lower than  the  officer  facing the trial is  obvious.   The  law makers  and  the  rule framers appear to have  in  mind  the respect  and  dignity of the officer facing the  trial  till guilt  is  proved  against  him  by  not  exposing  him   to humiliation of being subjected to trial by officers of lower in  rank.   The importance of the judge-advocate as  noticed earlier  being of a paramount nature requires that he should be  such person who inspires confidence and does not subject the  officer  facing  the trial to humiliation  because  the accused  is also entitled to the opinion and services of the judge-advocate.   Availing of the services or seeking advise from  a person junior in rank may apparently be not possible ultimately resulting in failure of justice.

   It  has been argued that as officers of the same rank or

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higher  in rank than the officers facing the trial in  court@@            JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ martials are not available, an interpretation as rendered by@@ JJJJJJJJJJJJJJJJ the  impugned  judgment  would render the holding  of  court martials  impossible.  Such an argument is to be noticed for only being rejected.  Sub-rule (2) of Rule 40 itself gives a discretion  to  the convening officer who is  authorised  to appoint  a member of the court-martial or judge-advocate who is  lower in rank than the officers facing the trial, if  he is  of the opinion that officer of such rank is not  (having due  regard  to  the  exigencies   of  the  public  service) available,  subject to a further condition that such opinion is  required  to  be recorded in the  convening  order.   It implied,  therefore, that the provisions of sub-rule (2)  of Rule  40 are not mandatory because they give a discretion to appoint  a  member of the court martial or a  judge-advocate who is lower in rank than the officer facing the trial under the  circumstances  specified.  Rule 39, admittedly, has  no exception and is thus mandatory.

   Further  relying  upon Note 2 mentioned at the  foot  of Rule   102   providing,  "as  to   disqualification   of   a judge-advocate  CAR  39(2)", the learned ASG submitted  that the  said Note having the force of law has been followed  by the  Army  authorities  from  the very  beginning  and  thus disqualifications  of a judge-advocate are referable to only Rule  39(2) of the Rules.  It is contended as the source  of the  Rules and the Note thereto is the same, the efficacy of Note 2 cannot be minimised.  The Army authorities, according

to  the learned ASG have understood Rules 39, 40 and 102  in this  context  while  making   appointments  of  the  judge- advocate.

   In  response  to  our directions an affidavit  has  been filed on behalf of the appellants with respect to:

   (a) the authority which had prepared the Notes appearing in Army Act, 1950 and Army Rules, 1954

   (b)  the year in which these Notes were incorporated  in the Army Act, 1950 and Army Rules, 1954.

   (c)  the authority which had approved these Notes to  be incorporated   in  the  Army  Act   and  the  Rules   framed thereunder.  stating therein:

   "That  Army Act, 1950 was enacted on the pattern of  the Indian  Army  Act,  1911  and Army Rules, 1954  are  on  the pattern  of  Indian Army Act Rules, Army Rule 89  of  Indian Army  Act  Rules  dealt  with  disqualifications  of  Judge- advocate.    It   also   had     note   stating   that   for disqualification,  see  the Rule dealing with the Rule  pari materia  to Rule 39 of the present Rules that is Army Rules, 1959.

   That  the manual of Indian Military Law, 1937, published by  Govt.   of  India, Ministry of Defence  (Corrected  upto 1960) Reprint 1967, also contains Indian Army Act, 1911 with Notes  as  well  as the Indian Army Act  Rules  with  Notes. Since  this was 1967 reprint, in this manual even Army  Act, 1950 and Army Rules, 1954 are also contained.

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   That  in the year 1978 the JAG’s Department compiled the Army  Act  & Rules in the new Manual with a view to make  it more  convenient  for  reference.  Prior to  it,  as  stated above,  the Military Law of the country was outlined in  the Manual  of  Military  Law, 1937.  The Manual  contained  the Indian  Army  Act,  1911, the Indian Army Act  &  Rules  and explanatory  notes  under various Sections and  Rules.   The passage  of  time  necessitated revision of the  Manual  and incorporation  of  explanatory  notes   under  the  relevant sections  and clauses of the Army Act, 1950 and Army  Rules, 1954.   It  also  became  necessary to  include  some  other enactments essential to the subject, and to exclude from the Manual the repealed Indian Army Act, 1911 and the superseded Indian  Army  Act  Rules.   The   Manual  of  Military   Law containing explanatory Notes under the current and operative Army Act & Rules were issued in 1983.

   That  as stated above, the Manual of Military Law issued in 1983 was compiled by the office of Judge Advocate General and  approved  by the Govt.  as evident from the preface  of the Manual.

   That  the Notes to Army Act and Army Rules were appended to  Indian Army Act, 1911 and the Indian Army Act Rules  and were  followed  as  explanatory Notes and  guidance.   These suitably  modified and amended were formally appended to the relevant  provisions  of the Army Act, 1950 and Army  Rules, 1954  in 1983 after the same were duly approved by the Govt. That no facts which were not pleaded before court below have not been pleaded."

   However,  no material has been placed on record to  show that  the Notes appended to the Rules were duly approved  by the  Government.   Per  contra the respondent  No.1  in  his affidavit  has  submitted that the Notes under Sections  and Rules  as are found under various provisions of law compiled by the Army authorities in the Manual of Military Law do not form  part of the Army Act, 1950 and Army Rules, 1954.   The Rules  of  1954  are stated to have been borrowed  from  the Indian  Army Act, 1911 and the Rules framed thereunder.   It is contended that the Notes are not law passed by Parliament and  have  not  been vetted even by the Ministry  of  Law  & Justice  or by the Law Commission.  It is not disputed  that Section  191 of the Army Act empowers the Central Government to  make  rules for the purpose of carrying into effect  the provisions  of  the Act and Section 192 to make  regulations for all or any of the provisions of the Act other than those specified  in  Section 191.  All Rules and Regulations  made under  the Act are required to be published in the  official gazette  and on such publication shall have the effect as if enacted  in the Act.  No power is conferred upon the Central Government  of  issuing Notes or issuing orders which  could have  the effect of the Rules made under the Act.  Rules and Regulations  or  administrative instructions can neither  be supplemented  nor substituted under any provision of the Act or  the  Rules  and   Regulations  framed  thereunder.   The administrative  instructions issued or the Notes attached to the Rules which are not referable to any statutory authority cannot  be permitted to bring about a result which may  take away the rights vested in a person governed by the Act.  The Government,  however,  has the power to fill up the gaps  in supplementing the rules by issuing instructions if the Rules are  silent on the subject provided the instructions  issued are   not  inconsistent  with   the  Rules  already  framed.

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Accepting  the contention of holding Note 2 as supplementing Rules  39  and 40 would amount to amending  and  superseding statutory  rules by administrative instructions.  When  Rule 39  read  with  Rule  40  imposes  a  restriction  upon  the Government  and  a right in favour of the person tried by  a court-martial  to  the  effect that a person lower  in  rank shall  not  be  a  member  of the  court  martial  or  be  a judge-advocate,  the insertion of Note 2 to Rule 102  cannot be  held  to  have the effect of a Rule or  Regulation.   It appears that the ’notes’ have been issued by the authorities of  the  Armed  Forces  for the  guidance  of  the  officers connected  with the implementation of the provisions of  the Act  and the Rules and not with the object of  supplementing or  superseding  the  statutory   Rules  by   administrative instructions.   After  examining various provisions  of  the Act,  the  Rules  and   Regulations  framed  thereunder  and perusing  the  proceedings  of the  court-martial  conducted against  the respondent No.1, we are of the opinion that the judge-advocate  though not forming a part of the court,  yet being an integral part of it is required to possess all such qualifications  and be free from the disqualifications which relate   to   the  appointment  of   an   officer   to   the court-martial.   In  other words a judge-advocate  appointed with  the  court-martial should not be an officer of a  rank lower  than  that  the officer facing the trial  unless  the officer  of  such  rank  is not (having due  regard  to  the exigencies  of  public  service) available and  the  opinion regarding  non-availability is specifically recorded in  the convening order.  As in the instant case, judge-advocate was lower   in   rank   to   the    accused   officer   and   no satisfaction/opinion  in  terms of sub- rule (2) of Rule  40 was  recorded,  the  Division Bench of the  High  Court  was justified  in  passing  the impugned  judgment,  giving  the authorities   liberty   to   initiate  fresh   court-martial proceedings,  if  any, if they are so advised in  accordance with  law and also in the light of the judgment delivered by the High Court.

   Fears  have been expressed that in case the  proceedings of  the  court-martial  are  quashed on the  ground  of  the judge-advocate  being lower in rank than the officer  facing trial  before  the court-marital, many judgments  delivered, orders  passed  and actions taken by various  court-martials till  date  would  be  rendered   illegal  as  according  to appellants a number of court-martials have already been held and  conducted under the assumption of the  disqualification not being referable to Rule 40(2), on the strength of Note 2 attached  to  Rule 102 of the Rules.  In that event,  it  is apprehended,  a flood-gate of new litigation would be opened which ultimately is likely to not only weaken the discipline in the Armed Forces but also result in great hardship to all those  whose  rights have already been determined.  Such  an apprehension  is  misplaced in view of "de  facto  doctrine" born  out  of  necessity  as acknowledged  and  approved  by various  pronouncements  of  the   courts.   This  Court  in Gokaraju  Rangaraju  vs.  State of Andhra Pradesh [1981  (3) SCC  132] applying the de facto doctrine in a case where the appointment  of  a  judge  was found to  be  invalid,  after reference  to various judgments and the observations of  the constitutional experts held:

   "A  judge, de facto, therefore, is one who is not a mere intruder  or usurper but one who holds office, under  colour of lawful authority, though his appointment is defective and may  later be found to be defective.  Whatever be the defect

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of  his title to the office, judgments pronounced by him and acts  done  by him when he was clothed with the  powers  and functions  of  the office, albeit unlawfully, have the  same efficacy as judgments pronounced and acts done by a judge de jure.  Such is the de factor doctrine, born of necessity and public  policy  to  prevent needless confusion  and  endless mischief.   There  is yet another rule also based on  public policy.   The defective appointment of a de facto judge  may be  questioned  directly  in a proceeding to which he  be  a party  but  it  cannot be permitted to be  questioned  in  a litigation between two private litigants, a litigation which is  of  no concern or consequence to the judge except  as  a judge.  Two litigants litigating their private titles cannot be  permitted to bring in issue and litigate upon the  title of  a  judge  to his office.  Otherwise so soon as  a  judge pronounces  a  judgment a litigation may be commended for  a declaration  that the judgment is void because the judge  is no  judge.  A judge’s title to his office cannot be  brought into  jeopardy  in  that fashion.  Hence  the  rule  against collateral  attack on validity of judicial appointments.  To question  a  judge’s  appointment in an appeal  against  his judgment is, of course, such a collateral attack.

   We  do  not  agree with the submission  of  the  learned counsel  that  the  de  facto doctrine  is  subject  to  the limitation  that the defect in the title of the judge to the office  should  not be one traceable to the violation  of  a constitutional   provision.    The    contravention   of   a constitutional  provision may invalidate an appointment  but we  are not concerned with that.  We are concerned with  the effect  of the invalidation upon the acts done by the  judge whose  appointment  has  been  invalidated.   The  de  facto doctrine  saves  such acts.  The de facto doctrine is not  a stranger  to  the Constitution or to the Parliament and  the Legislatures   of   the  States.    Article  71(2)  of   the Constitution  provides  that acts done by the  President  or Vice-President  of India in the exercise and performance  of the powers and duties of his office shall not be invalidated by  reason  of  the  election of a person  as  President  or Vice-President  being declared void.  So also Section 107(2) of  the Representation of the People Act, 1951 (43 of  1951) provides  that  acts and proceedings in which a  person  has participated  as  a member of Parliament or a member of  the legislature of a State shall not be invalidated by reason of the  election  of  such person being declared  to  be  void. There   are  innumerable  other   Parliamentary  and   State legislative   enactments  which  are   replete   with   such provisions.   The twentieth amendment of the Constitution is an  instance where the de facto doctrine was applied by  the constituent  body  to  remove  any  suspicion  or  taint  of illegality or invalidity that may be argued to have attached itself  to judgments, decrees, sentences or orders passed or made  by  certain  District Judges  appointed  before  1966, otherwise  than in accordance with the provision of  Article 233  and  Article  235 of the Constitution.   The  twentieth amendment was the consequence of the decision of the Supreme Court in Chandra Mohan v.  State of U.P.  [1967 (1) SCR 77], that  appointments of District Judges made otherwise than in accordance  with the provisions of Article 233 and 235  were invalid.  As such appointments had been made in many States, in  order  to pre-empt mushroom litigation springing up  all over  the  country, it was apparently though desirable  that the  precise  position should be stated by  the  constituent body  by  amending the Constitution.  Shri  Phadke,  learned counsel for the appellants, argued that the constituent body

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could   not  be  imputed  with   the  intention  of   making superfluous  amendments  to the Constitution.   Shri  Phadke invited us to say that it was a necessary inference from the twentieth  amendment  of the Contitution that, but  for  the amendment,  the  judgments, decrees, etc.  of  the  District Judges  appointed  otherwise  than in  accordance  with  the provisions  of  Article 233 would be void.  We do not  think that  the inference suggested by Shri Phadke is a  necessary inference.  It is true that as a general rule the Parliament may  be  presumed not to make superfluous legislation.   The presumption  is  not a strong presumption and  statutes  are full  of provisions introduced because abundans cautela  non nocet  (there is no harm in being cautious).  When  judicial pronouncements have already declared the law on the subject, the  statutory  reiteration  of the law  with  reference  to particular  case  does not lead to the  necessary  inference that the law declared by the judicial pronouncements was not thought  to apply to the particular cases but may also  lead to the inference that the statute-making body was mindful of the real state of the law but was acting under the influence of  excessive  caution  and  so to  silence  the  voices  of doubting  Thomases by declaring the law declared by judicial pronouncements  to  be  applicable also  to  the  particular cases.   In  Chandra  Mohan case this Court  had  held  that appointments  of  District  Judges made  otherwise  than  in accordance  with  Article  233  of  the  Constitution   were invalid.   Such appointments had been made in Uttar  Pradesh and  a  few  other States.  Doubts had been  cast  upon  the validity of the judgments, decrees etc.  pronounced by those District Judges and large litigation had cropped up.  It was to  clear  those  doubts and not to alter the law  that  the twentieth  amendment of the Constitution was made.  This  is clear from the statements of Objects and Reasons appended to the  Bill which was passed as Constitution (20th  Amendment) Act, 1966.  The statement said:

   Amendments of District Judges in Uttar Pradesh and a few other  States  have been rendered invalid and illegal  by  a recent judgment of the Supreme Court on the ground that such appointments were not made in accordance with the provisions of  Article 233 of the Constitution...  As a result of these judgments,  a serious situation has arisen because doubt has been  thrown  on  the validity of the  judgements,  decrees, orders and sentences passed or made by these District Judges and  a number of writ petitions and other cases have already been  filed challenging their validity.  The functioning  of the District Courts in Uttar Pradesh has practically come to a  standstill.   It  is, therefore,  urgently  necessary  to validate the judgments, decrees, orders and sentences passed or  made  heretofore  by all such District Judges  in  those States....".

   This  position  of law was again reiterated in State  of U.P.  vs.  Rafiquddin [1988 (1) SLR 491=1987 Supp.  SCC 401] wherein  it  was held:  "We have recorded findings  that  21 unplaced  candidates  of 1970 examination were appointed  to the  service  illegally in breach of the Rules.   We  would, however,  like to add that even though their appointment was not  in accordance with the law but the judgment, and orders passed  by  them  are not rendered  invalid.   The  unplaced candidate are not usurpers of office, they were appointed by the  competent  authority to the posts of munsifs  with  the concurrence  of  the  High Court, though they had  not  been found  suitable for appointment according to the norms fixed

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by the Public Service Commission.  They have been working in the judicial service during all these years and some of them have  been  promoted  also  and they  have  performed  their functions  and  duties  as de facto judicial  officers.   "A person  who  is  ineligible  to   judgeship,  but  who   has nevertheless been duly appointed and who exercise the powers and  duties  of  the  office of a de facto  judge,  he  acts validly  until he is properly removed." Judgment and  orders of  a de factor judge cannot be challenged on the ground  of his ineligibility for appointment."

   In  view of this position of law the judgments  rendered by  the court martial which have attained finality cannot be permitted  to be re- opened on the basis of law laid down in this  judgment.   The proceedings of any  court-martial,  if already   challenged   on  this   ground  and  are   pending adjudication  in any court in the country would, however, be not  governed by the principles of ’de facto doctrine’.   No pending  petition shall, however, be permitted to be amended to  incorporate  the  plea regarding the  ineligibility  and disqualification   of  judge-advocate  on   the  ground   of appointment  being  contrary to the mandate of  Rule  40(2). This  would  also  not debar the Central Government  or  the appropriate  authority  in  passing fresh  orders  regarding appointment  of the fit persons as judge-advocate in pending court-martials, if so required.

   In  the  light of what has been stated hereinabove,  the appeal  is  dismissed  with the  observations  and  findings noticed  in the preceding paragraph and the judgment of  the Division Bench of the High Court is upheld.  No costs.