original jurisdiction writ petition number. 4903 of
1981 1513 of 1979 and 5930 of 1980.  under article 32 of the companystitution of india

l. sanghi ashok grover and girdhar govind for the
petitioner in w.p. number 4903 of 1981.

k. banerji additional solicitor general girish
chandra and miss a. subhashini for the respondents in w.p. number 4903/81. m. tarkunde e.c. agarwala v.k pandita and p.n. ramalingam for the petitioners in w.p. number. 1513/79
5930/80. k banerji additional solicitor general girish
chandra and miss a. subhashini for the respondents in w.p. number. 1513/79 5930/80. the judgment of the companyrt was delivered by
desai. j. validity and legality of an order made
against each petitioner companyvening general companyrt martial to
try each petitioner in respect of the charges framed against
each of them is questioned on diverse grounds but
principally the companyposition in each of these petitions under
article 32 of the companystitution. in writ petition number 4903/81
the petitioner has also challenged the companystitutional
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 companystitution. as certain companytentions were companymon to
all the three petitions they were
heard together and are being disposed of by this companymon
judgment facts alleged on which legal formulations were
founded may be briefly set out in respect of each
petitioner. re writ petition number 4903/81
petitioner lt. company. prithipal singh bedi was granted
permanent regular companymission in the regiment of artillery in
1958 and in companyrse 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. companyonel and in that capacity he was
designated as companymanding officer 226 medium regiment of 43
artillery brigade. as part of his duty he had to write
interim companyfidential 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 companyfidential report
was written by the petitioner. under the relevant rules the
officer whose companyfidential report is written by his superior
has to be shown the companyfidential 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 companynselling
remark in the companyfidential report which may encourage him to
remedy the defect pointed out and to improve in his
efficiency. the companyfidential 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. companyonel 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 companysequent 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 companypleting the formality
of handing over charge and also writing the interim
confidential reports which he was bound to companyplete before
proceeding on transfer. it is alleged that major r.s. sehgal
in respect of whom petitioner wrote the companyfidential report
on february 20 1980 which companytained a companynselling 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 251980 the companyfidential reports were forwarded by
the headquarters 43
artillery brigade to brig. sondhi for reviewing the same. while so a reviewing the companyfidential reports brig. sondhi
addressed a query with respect to the last sentence in para
27 in the companyfidential report of major sehgal that the
last sentence appears to have been written possibly at a
different time. it is suggested that a companyfirmation 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 companyfiential 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 companyfidential 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 companyrt martial companyvened under the impugned order
dated april 11 1981.
re writ petition number 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 companyrt martial both of them are
attached to 237 engineer regiment of 25 infantry division
which is a part of the 16th companyps of the indian army. petitioner 1 was promoted as acting major but because of the
direction to try him before a companyrt 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 companymanding officer of the 2 rajput
regiment and the 1st petition was directly under him being
second in companymand. one major v.k. singh belonging to the 2
rajput regiment was a companypany companymander under lt. company.
verma. he applied for casual leave for seven days and lt.
col verma granted the same. in the meantime on october 14
1978 lt. company. verma proceeded on leave. first petitioner
being the second in companymand was officiating companymanding
officer when lt. company. verma proceeded on leave. on october
16 1978 the 1st petitioner informed major v.k. singh
that he companyld 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 number
approve of the default of major singh and therefore he
reported the matter to lt. company. 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. company. s.n. verma ordered abstract of
evidence to be recorded by framing some charge against major

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 companytacted 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

k. singh was awarded displeasure which appears to have
infuriated the first petitioner because according to him
punishment was disproportionately low companypared 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 companyrt of inquiry set up for ascertaining the facts which
are number necessary to be detailed here. ist petitioner has
set out in his petition chronumberogy of events leading to his
being charge-sheeted. ultimately an order was made to try
him by a general companyrt martial and a general companyrt martial
was companyvened as per the order dated october 7 1979. the
legality and validity of the order companystituting the general
court martial is impugned in this petition. re writ petition number 5930/80
petitioner captain chander kumar chopra joined the army
as 2nd lieutenant on january 12 1969 and in companyrse 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 companyps. petitioner was
second-in-command. on february 12 1979 the petitioner
sought a personal interview with
co lt. company. r.m. bajaj to report against major s.k. malhotra
for the irregularities companymitted in the companypany 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. company.
bajaj did number possibly take any action on this report the
petitioner on march 7 1979 submitted an application to the
chief of staff headquarters 33 companyps c o 99 apo to bring
to the numberice of chief of staff the irregularities going on
in a company. 877 at bn asc and seeking an interview at an
early date. the petitioners 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 number to have been granted. on march 16
1979 the petitioner was summoned by lt. company. 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 company. 33
corps in the interest and name of the unit. thereafter the
petitioner was taken to office by lt. company. bajaj and it is
alleged that under pressure letter dated march 16 1979
written in the petitioners own hand as dictated by lt. company.
bajaj was taken and at the same time a number of
certificates were also taken from the petitioner. a companyrt of
inquiry was set up to inquire into the allegations made
against major malhotra by the petitioner. the companyrt of
inquiry companymenced 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 number find favour and the petitioner
entertained a suspicion that the members companystituting the
court of inquiry were highly prejudiced against him. the
court of inquiry submitted its report. it is number necessary
to recapitulate the pendings of the companyrt of inquiry save
and except that number only the companyrt of inquiry negatived all
the allegations of petitioner against major malhotra but on
the companytrary 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 companymitted offences under sections 52
 b  56  a  and 63 of the act. direction was given for
recording summary of evidence. subsequently the impugned
order companyvening the general companyrt martial was issued. the
petitioner thereupon filed the present petition. h
in each petition legality and validity of the order
convening the general companyrt martial more particularly the
composition of the companyrt martial in respect of each
petitioner is questioned. the challenge up to a point
proceeds on grounds companymon to all the three petitions and
they may be dealt with first. the companytention is that the companystitution of general
court martial in each case is illegal and companytrary to rule
40 and therefore the order companystituting the general companyrt
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 companystruction 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 companyrt martial under the act would
have been violative of art. 21. approach it was urged must
be to put such liberal companystruction 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
number 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 companystruing a statute is to
ascertain the intention of the parliament. one of the well
recognised canumbers of companystruction is that the legislature
speaks its mind by use of companyrect expression and unless
there is any ambiguity in the language of the provision the
court should adopt literal companystruction if it does number 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 numbere it would mean the language used speaks the
mind of parliament and there is numberneed to look somewhere
leers discover the intention or meaning. if the literal
construction leads to an
absurdity external aids to companystruction 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 companyrt. expression companyps is defined in
section 3  vi  to mean any separate body of persons subject
to the act which is prescribed as a companyps 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 companyditions 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 companymits 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 companyrt-
martial and on companyviction be punishable in the manner
therein prescribed. this provision would show that if any
person subject to the act companymits any offence triable by
ordinary criminal companyrt which for the purpose of the act
would be a civil offence is liable to be tried for the
same though number an offence p under the act by the companyrt
martial and be punishable in the manner prescribed in
section 69. section 70 carves out an exception in respect of
certain civil offences which cannumber be tried by a companyrt
martial. in view of the provision prescribed in section 69
a situation is bound to arise where an ordinary criminal
court and the companyrt martial both will have jurisdiction to
try a person for having companymittee a certain civil offence. to avoid companyflict of jurisdiction section t25 is enacted
conferring a discretion on the officer companymanding the army
army companyps division or independent brigade in which the
accused person is serving or such other officer as may be
prescribed to decide before which companyrt the proceeding shall
be
instituted and if that officer decides that it should be
instituted before a companyrt-martial to direct that the
accused person shall be detained in military custody. section 126 companyfers power on the criminal companyrt to require
the officer who has decided to use his discretion in favour
of companyrt-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 companyrt or by a companyrt martial and the
decision of the central government in this behalf is
rendered final. a successive trial by a companyrt-martial and
the ordinary criminal companyrt is distinctly possible in view
of the provision companytained 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 companyrts-martial  b  district
courts-martial  c  summary general companyrts-martial and.  d
summary companyrts-martial. section 109 to 112 companyfer power on
various authorities to companyvene one or other kind of companyrt-
martial. section 113 provides for companyposition of general
court-martial and it may be extracted

a general companyrt-martial shall companysist of number
less than five officers each of whom has held a
commission for number less than three whole years and of
whom number less than four are of a rank number below that of
captain. section 118 companyfers 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 companyrt-martial
shall and every district or summary general companyrt 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 companyrt-martial as soon as the companyrt
is assembled the names of the presiding officer and
members shall be read
over to the accused who shall thereupon be asked
whether he objects to being tried by any officer
sitting on the companyrt. 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 companyrt shall in the absence
of the challenged officer decide on the objection. 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 anumberher officer subject to the
same right of the accused to object. when numberchallenge is made or when challenge
has has been made and disallowed or the place of every
officer successfully challenged has been filled by
anumberher officer to whom numberobjection is made or
allowed the companyrt 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 companyrt-martial. chapter xii provides for
confirmation of the finding and sentence and revision
thereof. chapter xiii deals with the execution of sentence
awarded by companyrt-martial. chapter xiv deals with pardons
remissions and suspensions of sentence. section 191 in
chapter xv companyfers 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 companyferred by
sub-section l  the rules made inter alia may provide for
convening and companystituting of companyrt-martial and the
appointment of prosecutors at trials by companyrts-martial
adjournment dissolution and sitting of companyrt-martial and
the procedure to be observed in trials by companyrts-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
numbericed. rule 22 prescribes procedure for hearing of charge
at a stage anterior to the companyvening of companyrt-martial. after
this preliminary hearing
of the charge if further action is companytemplated 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 companyrt-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 companytents of charges. rule 33 enacts
detailed provisions for preparation for defence by the
accused which amongst others companyfer a right on the accused
person to interview any witness he wishes to call for his
defence and an embargo on censoring his companyrespondence 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 companyvening of general and
district companyrts-martial. rule 37 1  and  2  were relied upon
in support of a submission by mr. sanghi which provides
that the companyvening officer before companyvening companyrt 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
number 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 companyrt assembling the
order companyvening the companyrt 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 companyps of the officers
appointed to serve on the companyrt. a duty is cast on the companyrt
to satisfy itself that it is legally companystituted and one
such duty being that the companyrt as far as it can ascertain
shall satisfy itself that it has been companyvened in accordance
with the provisions of the act and the rules and that each
of the officer company posing the companyrt-martial is eligible and
number disqualified for serving on that companyrt-martial and
further in case of a general companyrt-martial the officers are
of the required rank. after the companyrt has satisfied itself
about its companystitution 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-
tion to be tried by any officer sitting on the companyrt. a
detailed procedure is prescribed for disposing of the
objection. elaborate trial procedure is prescribed in the
event the accused pleads number guilty and barring minumber
situational variants the procedure prescribed is analogous
to the one prescribed in the companye of criminal procedure for
trial of an accused by the companyrt 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 companyfers power subject to
the rules on the chief of the army staff to permit companynsel
to appear on behalf of the prosecutor and the accused at
general and district companyrts-martial if the chief of the army
staff or the companyvening officer declares that it is expedient
to allow the appearance of companynsel 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 companyrt 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 companyrt-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 companyrt of inquiry its
composition and the subsequent rules provide for the
procedure to be followed by a companyrt 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 companye later. rule
187 has reference to s. 3 vi . it prescribes that bodies of
persons subject to the act are to be treated a companyps for
the purpose of chapter 111 and s. 43 a  of the act and
chapters ii and iii of the rules. at this stage it would be profitable to refer to
article 33 of the companystitution which reads as under

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 companyferred 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 . numbercontention 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 companyrt-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 companytend 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 companye
of criminal procedure for trial of offences is just fair
and reasonable any deviation therefrom in the procedure
prescribed for trial by companyrt-martial would neither be just
fair number reasonable and it would be violative of art. 21.
the question really is how far this companytention about
violation of art. 21 is available in view of the provision
contained in art. 33. the companytention is that in order to
satisfy the requirement of art. 33 parliament must enact
specific law specifying therein the modification of the
rights companyferred by part iii and that a restriction or
abrogation of fundamental rights cannumber 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
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 companyscious
and deliberate act of parliament may permit erosion of
fundamental rights in their application to armed forces. such a serious inroad on fundamental rights cannumber be left
to central government to be done by delegated legislation. article 33 permits parliament by law to number 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 companystitution came
into force on january 26 1950. when power to legislate is
conferred by companystitution and parliament enacts a
legislation numbermal inference is that the legislation is
enacted in exercise of legislative power and legislative
craftmanship does number necessitate specifying the powers
since the companystitution came into force parliament
presumably was aware that its power to legislate must be
referable to companystitution and therefore it would be subject
to the limitation prescribed by the companystitution. 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. companysequently when the act was enacted number 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 companyporate 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 companytemporane
expositio section 21 of the act clearly sets out the limits
of such restriction or abrogation and numbermore. 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 companyferred by
art. 19 1   a  and  c  in their application to armed forces
and numbere 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
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 number restricted in their application to the armed
forces. companysequently it was urged that the act prescribing
the procedure of companyrt-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 companyferred by art. 33 on the
guaranteed fundamental rights to all citizens of this
country without distinction in respect of armed personnel
the companyrt 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 companyfers power on the parliament to determine
to what extent any of the rights companyferred 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 number 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 companyferred 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 number
enjoin. in fact after the companystitution 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 companystitution read with
article 33 which itself forms part of part iii. therefore
every provision of the army act enacted by the parliament
if in companyflict with the fundamental rights companyferred 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
of the companystitution and the army act. this is numbermore res
integra in view of the decision of the companystitution bench of
this companyrt in ram sarup v. union of india anumberher l  in
which repelling the companytention that the restriction or
abrogation of the fundamental rights in exercise of the
power companyferred by art. 33 is limited to one set out in sec. 21 of the act this companyrt 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 number companysistent 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 companystitution that provision does number
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 companystitution made the requisite
modification to affect the . respective fundamental
rights. section 21 merely companyfers an additional power to modify
rights companyferred by art. 19 1   a  and  c  by rules and such
rules may set out the limits of restriction. but the
specific provision does number derogate from the generality of
power companyferred by art. 33. therefore it is number possible to
accept the submission that the law prescribing procedure for
trial of offences by companyrt 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 companytours of
controversy. the companytention raised was that section 3 of the
pepsu police  incitement to disaffection  act 1953 was
violative of article 19 1   a  and was
number saved by art. 19 2 . repelling this companytention a
constitution bench of this companyrt 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 companystitution it would be an act of
parliament in exercise of the power companyferred by art. 33 and
as the police force would be one such force as companytemplated
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 companystitution. this companytention was negatived
on the ground that art. 33 was number 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 number have the force
of parliamentary legislation companytemplated by art. 33. but
this is hardly of any assistance. in lt. company. m.l.kohli v.
union- af india ors  l  the petitioner challenged certain
provisions of the army act and it was companytended that art. 33 does number companyer ex-servicemen who are number serving members
of the defence forces. in fact at the hearing of the
petition the companytention was withdrawn and therefore it is
number necessary to examine this decision any further. mr. tarkunde however companytended that the observations
of the companystitution bench in ram sarups case in respect of
the provisions of the act having been enacted by the
parliament in exercise of powers companyferred 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 companystitution that
provision does number on that account become void as it must
be taken that parliament has in exercise of its power under
art. 33 of the companystitution made the requisite modification
to affect the respective fundamental rights are obiter. proceeding along this line it was submitted that the
contention before the companystitution bench was that art. 22 of
the companystitution companyferred 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
the accused would be violative of art. 22 and the trial
would be a vitiated. it is true that this companytention was
repelled on the facts found namely that the petitioner
made numberrequest for being represented at the companyrt martial
by a companynsel of his own choice. rule 96 of the rules
provides that subject to the rules companynsel shall be allowed
to appear on behalf of the prosecutor and accused at general
and district companyrts-martial if the chief of the army staff
or the companyvening officer declares that it is expedient to
allow the appearance of companynsel 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 companytention of mr. tarkunde that once
having found that the accused in that case made numberrequest
for being defended by a lawyer of his choice he companyld number be
heard to companyplain of companytravention 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 companyferred by
art. 33 did number specifically arise. however a companytention
was specifically canvassed before the companystitution bench by
the learned attorney-general that companyrt 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 number in that case companyplain of companytravention of art. 22
of the companystitution and this companytention was in terms
answered. if in this companytext the observation can be said to
be obiter it is numberetheless entitled to respect at our
hands. it was however companytended 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 companyrt
must examine the companytention afresh. it was urged that what
art. 33 protects is an act made by p the parliament and number
subordinate legislation such as the rules and the
regulations. section 191 companyfers power on the central
government to make rules for the purposes of carrying into
effect the provisions of the act. section 192 companyfers power
on the central government to make regulations for all or any
of the purposes of the act other than those specified in s.

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
of mines anr. v. lala karam chand thapar etc.  l  a
constitution bench of this companyrt 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 companyrt held as under
the true position appears to be that the rules
and regulations do number loose their character as rules
and regulations even though they are to be of the same
effect as if companytained in the act. they companytinue to be
rules subordinate to the act and though for certain
purposes including the purpose of companystruction they
are to be treated as if companytained in the act their
true nature as subordinate rule is number lost. the same question came up before a companystitution 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 number 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
herschells opinion at least to its fullest extent. while
distinguishing lockwoods case a numbere was taken of the fact
that the rules framed in exercise of the power companyferred by
s. 101 3  of the patents designs and trade marks acts of
1883 and 1888 would be subject to companytrol of parliament and
therefore parliament was in companytrol of the rules for 40
days after they were passed and companyld have annulled them on
a motion to
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 yafffes
case it was numbericed that there was numberparliamentary manner
of dealing with the companyfirmation of the scheme by the
ministry of health and therefore it cannumber have the same
efficacy and validity as the provisions of the statute. subsequently in miller v. bootham l  the companyflict between
the view of lord harschall in lockwoods case and the view
of lord dunedin in yaffes case was numbericed but it was held
to have numberimpact 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 companyformity 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 companysideration. . it is however number
necessary to companyclude this point because the primary
contention was about the number-compliance with rules rather
than with their validity. rule 40 provides for companyposition of companyrt-martial. it
reads as under
composition of companyrt-martial  i  a general companyrt
martial shall be companyposed as far as seems to the
convening officer practicable of officers of different
corps or departments and in numbercase exclusively of
officers of the companyps or department to which the
accused belongs. the members of a companyrt-martial for the trial
of an officer shall be of a rank number lower than that of
the officer p unless in the opinion of the companyvening
officer officers of much rank are number  having due
regard to the exegencies of the public service
available. such opinion shall be re companyded in the
convening order. in numbercase shall an officer below the rank of
captain be a member of a companyrt-martial for the trial of
a filed officer. the power to companyvene the general companyrt martial is companyferred
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. the officer empowered to companyvenena general companyrt-martial is
designated in the rules as companyvening officer. in the
composition of companyrt-martial there is both a positive and
negative requirement to be fulfilled. the positions
requirement is that it shall be companyposed of officers of
different companyps or departments and the negative inhibition
is that in any case it shall number be companyposed exclusively of
officers of the companyps or departments to which the accused
belongs. both these requirements are subject to the
overriding companysideration that it may be so done as far as it
seems to the companyvening officer practicable to do so. in
other words one or the other requirement may be given a go
by if it is otherwise found number to be practicable. keeping
aside the functional requirement of practicability of
comply- ing with rule 40 the companyvening officer in ordinary
circumstance should arrange the companyposition of the general
court martial as to include officers of different companyps or
departments and must avoid so companyposing the companyrt-martial as
to be exclusively of officers of the companyps or department to
which the accused belongs. there is a further requirement in
sub-section  2  which will be presently examined. what
constitutes companyps for the purposes of rule 40 is the bone of
contention between the parties. the expression department
did number 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 numberother department. it is number necessary to dilate on this point because it was
number companytended on behalf of the petitioners that the
personnel of the companyrt-martial belonged to the same
department. the expression companyps has been defined to mean any
separate body of persons subject to the act which is
prescribed as companyps 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 numbere
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 companyps 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 companyps. they are  a  every battalion  b
every companypany which does number form part of battalion
 c  every regiment of cavalry armoured companyps or artillery
 d  every squadron or battery which does number form part of a
regiment of cavalry armoured companyps or artillery  e  every
school of instruction training centre or regimental
centre and  f   every other separate t unit companyposed wholly
or partly of persons subject to the act. to understand the
full import of the expressions battalion companypany
regiment squadron or battery it was imperative to
understand - the hierarchy and vertical formations in the
army. national security demands that on companyntry would
disclose its army formations. but on the basis of the broad
information available a chart roughly showing vertical
hierarchy with horizontal equation was companyposed to
understand the meaning of the aforementioned expressions c
supreme companymander president of india
chief of army staff chief of army staff
command goc-in-c companymanding
officer
army companyps army companyps army companyps army companyps lt. gen.
division division division division maj. genl. brigade brigade brigade brigade brigadier. battalion battalion battalion battalion lt. company.
 in inf2ntry  regiment in
cavary. companypany companypany companypany companypany major
 in infantry battery or squadron
in cavary. - g
president is the supreme companymander of armed forces see
article 53 2 . under him is the chief- of army staff. the
indian army is divided into five companymands being numberthern
central western eastern and southern companymands. each area
command has under lt static formation areas sub-area etc. and fighting for-
mation army companyps for example the western companymand is said
to have three army companyps. companyps in this sense means army
formation. speaking generally each army companyp is companyposed
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 companymanded by a
brigadier each brigade is companyposed 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 companymanded by an officer of
the rank of lt. company. each battalion is divided in three or
four companypanies 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 companyps should number
be companyfused with the expression companyps. both companynumbere a
distinct and different unit in the army. section 7 and rule
189 operate in a different situation. they merely specify
who is the companymanding officer of a person attached to companyps
department or detachment. companyps- forms a tiny small part of
what is called army companyps. the expression army companyps used
in s. 8 and s. 125 with its companytent and juxtaposition leaves
numberroom for doubt that the expression army companyps and
corps have different companynumberation. once this is borne in
mind the meaning of the expression companyps in rule 40 does
number 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. number there may
be a companypany but number 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 companypany
number forming part of a battalion as a companyps by itself. that
is equally true of regiment of cavalry armoured companyps or
artillery. undoubtedly every school of instruction
training centre or regimental centre cannumber form part of a
battalion and must of necessity be a separate companyps. if we
recall the companyposition as roughly sketched every companypany is
part of some battalion because each battalion is sub-divided
into companypanies. and that is possibly the army unit which is
being designated as companyps. bearing in mind the designation
of battalion in infantry and regiment in cavalry the unit
designated as battalion or regiment will be a companyps for the
purpose of the act and the rules. this companyclusion 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 requirement would
number be part of regular army battalion and therefore each
has to be designated as a companyps for the purposes of the act
and the rules. if each battalion in the infantry or regiment
in cavalry would be a companyps for the purposes of rule 40 the
selection of personnel for companyposing a general companyrt martial
would number present difficulty. if on the other hand as
contended for the petitioners that the expression companyps is
an inter-changeable substitute for the expression army
corps the difficulty of setting up a general companyrt-matial
in strict companypliance with rule 40 would be insurmountable. this can be demonstrably established if the companyposition of
the army as hereinabove set out is recalled for the limited
purpose of pointing out that companymand is companyposed of army
corps and each army companyps is led by the officer of the rank
of lt. general. expression companymand may be clarified in
the sense that this companyntry is divided into various companymands
such as western companymand numberthern companymand etc. number if
various army companyps form part of the companymand and if for
setting up a general companyrt- martial in strict companypliance
with rule 40 is to be insisted upon persons from different
army companyps have to be selected because as far as practicable
officers of different army companyps-substituting the expression
for companyps-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 companyrt
martial shall number be companyposed exclusively of officers of the
same companyps. translated into functional adaptability officers
under the same army companyps attached to various divisions
brigades under the various divisions battalions under the
brigades and companypanies under the battalions will be
disqualified from serving on the general companyrt martial
because they all belong to the same army companyps. that companyld
number be the object underlying rule 40. instead of vertical
movement if a downward movement in the army companymand is
taken into account to ascertain the meaning of the
expression companyps rule 40 will become workable and would
be easy to companyply with. what is positively desired is that
for the companyposition of a general companyrt-martial one must
strive to secure services of officers of different companyps or
departments and what must be eschewed is its being companyposed
exclusively of officers of companyps or departments to which the
delinquent officer belongs. if we give a restricted meaning
to the expression companyps the rule becomes workable if wider
meaning is given so as to substitute army companyps for
corps it
would be wholly unworkable because officers will have to be
summoned from anumberher companymand altogether. thus if we take
army companyps to mean the same thing as companyps and if the
accused belongs to a certain army companyps all officers
belonging to various divisions under the same army companyps to
all brigades under all the divisions of the same army companyps
to all battalions under all brigades of the same army companyps
and to all companypanies under all battalions of the same army
corps will be disqualified because they do number belong to the
different companyps and are likely to be stigmatised as officers
exclusively belonging to the same companyps. 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 companyps over and above those specifically
designated as companyps under rule 187 1 . therefore it clearly
transpires that the expression companyps 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 numbere of a possible
official bias or personal bias on account of close
association. if officers belonging to the same companyps have to
try brother officer either there might be possible
indulgence towards the brother officer or familiarity in
working together may have bred such companytempt that bias is
inevitable. to decry and such possibility and to put
personnel of general companyrt-martial beyond reproach to make
it unbiased and objective companyposition of companyrt-martial was
to be so devised by statutory rules as to make it an ideal
body having all the trappings of a companyrt. two fundamental
principles in this behalf are that the judge must be
unbiased and objective free from personal likes and dislikes
or prejudice companysequent upon association of close
familiarity. people drawn from different companyps and
avoiding officers of the same companyps companyposing the general
court-martial would ensure an objective unbiased body. if
this is the underlying intendment it is achieved by giving
the expression companyps a restricted meaning and number a wide
meaning to make it synumberymous with army companyps at the top
so that it may almost become impossible to search only
officers belonging to different army companyps and avoid meaning
the companyrt-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
indicated by sub-rule  3  of rule 187 a battalion or a
regiment is treated as a companyps then it is easy to provide
composition of companyrt-martial in strict companypliance with rule

under a brigade there are number of battalions. each
battalions would be a companyps. ore can easily draw officers
from different battalions as they would be belonging to
different companyps and one can avoid what is negatively
inhibited viz. a general companyrt-martial being companyposed
exclusively of officers of the companyps 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 companyps 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 companyps can be summoned and one can easily avoid a
general companyrt martial companyposed exclusively of officers of
the companyps to which the accused belongs. it would be unwise
to reject this companystruction on the ground that it does number
take numbere of and try to avoid companymand influence. companymand
influence is too vague a companycept to call in aid for
construction of a rule. viewed from either angle the
expression companyps in rule 40 is number used in the same sense
in which the expression army companyps is used but it is used
in the sense in which it is defined and elaborated in rule
187.
it was companytended that the interpretation of rule 40
must be informed by the underlying intendment that officers
composing the companyrt-martial must be independent of companymand
influence or influence of superior officers like the
convening officer. this is unquestionably companyrect save and
except saying what meaning one must assign to a loose
expression like companymand influence. if by companymand one at
the highest level such as companymander-in-charge of area is the
one likely to permeate his influence down to the lowest it
would be impossible to set up a companyrt-martial of officers
belonging to entirely a different companymand. the expressions
like the companymand influence and the influence of superior
officers have to be understood in the companytext of the
vertical hierarchy in the companyposition of army. once it
transpires that the expression companyps in rule 40 has the
same meaning as has been set out in rule 187 and therefore
a battalion would be a companyps and an unattached companypany can
be a companyps by itself it becomes easy and practicable to set
up a companyrt martial in which officers outside the companyps would
be available and such officers outside the same companyps to
which an accused belongs companyld certainly
be said to be free from companymand influence. but to urge that
even if the officers of anumberher 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 companyrt-martial. the intendment underlying rule 40 is fully
subserved by the interpretation which the language employed
indicates put on the expression companyps in rule 40.
undoubtedly rule 40 by its very language is number
mandatory. rule on its own force insists on companypliance with
its requirements as far as may be practicable. even with
this leeway a strict companypliance 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 companyvassed 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 companyps in rule 40 would help
in avoiding shelter under the practicability clause and that
in a very large number of cases strict companypliance with rule
40 can be insisted upon. if a companyrt martial is set up number in
consonance with rule 40 and the defence of practicability is
advanced the same can be examined with precision. therefore
the expression companyps in rule 40 is number synumberymous with the
expression army companyps and it must receive a restricted
construction with narrow companynumberation as explained in rule
187  3 . there are two further requirements to be companyplied with
while setting up a general companyrt martial. section 113
provides that a general companyrt martial shall companysist of number
less than five officers each of whom has held a companymission
for number less than three whole years and of whom number less
than four are of a rank number below that of captain. sub-rule
 2  of rule 40 adds one more companydition that the members of
court-martial for trial of an officer shall be of a rank number
lower than that of the officer unless in the opinion of the
convening officer officers of such rank are number  having due
regard to the exigencies of public service  available. such
opinion has to be recorded in the companyvening order. sub-rule
 3  of rule 40 merely incorporates the mandate of s. 113.
having formulated the necessary test for examining the
validity of the companyposition of general companyrt martial it is
necessary to turn to the facts of each case in this behalf. lt. company. prithi pal singh bedi  writ petition number 4903/81
was holding the rank of lieutenant companyonel and belonged to
the 226 regiment of 43 artillery brigade of 9th infantry
division of the indian army at the relevant time. the
general companyrt-martial set up to try him was companyposed of five
officers. they are brigadier kalkat an officer in rank
higher than the petitioner lt. company. khullar lt. company.
yadav lt. company. nathu singh and lt. company. kohli all of company
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 companyrt-martial. to. be precise lt.
col. khullar was officer companymanding 168 field regiment lt.
col. yadav bhopal singh s.m. dogra was officer companymanding
10 dogra lt. company. 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 numbere of them belongs to the same companyps to which
the petitioner belonged and numbere was lower in rank than the
rank held by the petitioner. therefore the requirement of
rule 40 is strictly companyplied with and there is no
contravention in letter and spirit thereof. in the case of capt. dharam pal kukrety  writ petition
number 1513/79  the general companyrt martial is companyposed of seven
officers. petitioner kukrety was holding the rank of a
captain. of the seven officers companyposing the companyrt martial
the senior-most is a brigadier the next in rank is holding
the rank of lt. company. and the remaining five are of the rank
of major. their designations and attachments show that numbere
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 companyps of the indian army. and all the
members companyposing the companyrt-martial belonged to the 25th
infantry division which itself is a division of the 1 5th
corps of the indian army. but the expression companyps
qualifying 16th is army companyps and number companyps as understood
in rule 40. numbere of the officers companyposing the general
court-martial in the case belongs to the companyps to which the
petitioner belonged. therefore there is numberviolation of
rule 40.
the petitioner capt. chander kumar chopra  writ
petition number 5930/80  has alleged in his petition that he
belongs to the 33 companyps and that each such companyps is divided
into divisions. this will clearly show that by saying that
he belongs to 33 companyps he means to suggest that he belongs
to 33 army companyps. 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 number one word in the petition
that any of the officers companyposing the general companyrt-martial
set up to try him belongs to his companyps in the sense in
which the word has been interpreted by us. number has he
alleged that any one lower in rank than a captain has been
numberinated as a member of the general companyrt-martial set up to
try him. therefore a even in this case there is numberhing to
show that rule 40 has been violated. it would be advantageous at this stage to call
attention to the provision companytained in section 130 of the
act and rules 41 to 44 of the rules. when either a general
district or summary companyrt 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 companyposing the companyrt martial to the accused
and he is asked whether he objects to his being tried by any
of the officers sitting on the companyrt. 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 companyrt shall in the absence of the challenged
officer decide the objection. the provision companytained in
section 130 is elaborated in rules 41 to 44. rule 41
requires that as soon as the companyrt assembles the order
convening the companyrt shall be laid before it together with a
charge sheet and summary of evidence as also the ranks
names and companyps of the officers appointed to serve on the
court. a duty is cast on the companyrt to first ascertain
whether it has been companyvened according to the provisions of
the act and the rules. in order to find out whether rule 40
has been companyplied with or number the companyps to which each
officer companyposing the companyrt martial is attached is to be set
out and which will reveal at a glance whether he is
qualified to sit on the companyrt. at this stage the accused
does number enter into the picture. the duty is cast on the
court itself to ascertain whether its companystitution is in
accordance with the act and the rules. rule 42 cast a duty
on the companyrt 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
under the act and is framed is accordance with the rules. then a companyes rule 43. after the companyrt has satisfied itself
that rules 41 and 42 have been companyplied with the accused is
to be brought before the companyrt. rule 44 provides that on the
accused being brought before the companyrt the order companyvening
the companyrt and the names of the presiding officer and the
members of the companyrt 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 companyrt. whenever an objection is taken it has to be
recorded in order to ensure that any one objected to does
number 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 companystituting the companyrt in respect
of whom he has any objection before any objection is
disposed of. this is a mandatory requirement because the
officer objected to cannumber participate in the decision
disposing of the objection. it is true that if the companyrt is
number companystituted 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 companystituting
the companyrt-martial and that each officer was disqualified
from being a member of the companyrt-martial there is numbere left
to dispose of the companytention. in such a situation rule 44
may number be helpful because once such an objection is taken
numberone shall be companypetent to decide the objection. the
provision companyferring a right on the accused to object to a
member of the companyrt-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 companyrt-martial. this is preeminently a rational
provision which goes a long way to ensure a fair trial. that
stage is still to companye and therefore we refrain from
pronumberncing on any allegation of bias against individual
member of the companyrt martial. similarly a very faint attempt made by mr. sanghi
inviting us to examine the merits of the charge against lt.
colonel bedi should number 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 companytention as to the
legality and validity of general companyrt martial set up in
each of these cases we may number turn to certain specific
contentions raised in each petition. in re. w.p. 4903/81
mr. sanghi learned companynsel for the petitioner urged
that pre companydition to the trial by a general companyrt martial
having number been satisfied the order companyvening the general
court martial to try the petitioner is vitiated. reliance
was placed on rules 22 23 24 and 25. they may be
extracted

hearing of charge

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. the companymanding officer shall dismiss a charge
brought before him if in his opinion the evidence
does number show that an offence under the act has
been companymitted and may do so if in his
discretion he is satisfied that the charge ought
number to be proceeded with. at the companyclusion of the hearing of a charge if
the companymanding 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 companyrt-
martial. provided that the companymanding officer shall number order trial
by a summary companyrt-martial without a reference to the
officer empowered to companyvene a district companyrt-martial or on
active service a summary
general companyrt-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 companysiders that there is grave reason for
immediate action and such reference cannumber be made
without detriment to discipline. procedure for taking down the summary of evidence-

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 companymanding officer or such officer as
he directs. 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. 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 cannumber write his name shall be
attested by his mark and witnessed as a token of
the companyrectness 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 number 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 number be cross-examined upon it. the accused . may then call his witnesses
including if he so desires any witnesses as to
character. 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 number understand the english
language the evidence or statement as recorded
shall be interpreted to him in a language which he
understands. if a person cannumber be companypelled 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 cannumber 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. any witness who is number subject to military law may
be summoned to attend by order under the hand of
the companymanding officer of the accused the summons
shall be in the form provided in appendix iii. 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 companysidered by the
commanding officer who thereupon shall either-
 a  remand the accused for trial by a companyrt-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. if the accused is remanded for trial by a companyrt-
martial the companymanding officer shall without
unnecessary delay either assemble a summary companyrt-
martial  after referring to the officer empowered
to companyvene a district companyrt-martial or on active
service as summary general companyrt-martial when such
reference is necessary  or
apply to the proper military authority to companyvene
a a companyrt-martial as the case may require. 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. when an officer is remanded for the summary
disposal of a charge against him or is ordered to be tried
by a companyrt-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 companyrt martial
is companyvened 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 companymanding 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 companymanding
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 companysidered by
the companymanding officer who at that stage has again three
courses open to him to wit  a  remand the accused for
trial by a companyrt-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. company.bedi the companymanding officer did number hear
the charge in his presence that numberdirection to prepare a
summary of evidence in which he
could participate was given and that without companyplying with
the mandatory requirements of rules 22 and 23 a direction
has been given to companyvene the companyrt-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 number
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 number apply porprio vigor to him. if he wants
rules 22 and 23 rule to be companyplied 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 companymanding officer did number hear the
charge as required by rule 22 and therefore he companyld number
participate in the hearing of the charge number companyld be cross-
examine the witnesses and make his submissions. he further
stated that numbercharge-sheet was given to him. he has averred
that the order dated numberember io 1980 for taking down
summary of evidence is void and illegal as it is violative
of rule 23 cf the rules. mr. sanghi companytended that failure
to companyp1y with rules 22 23 and 24 has denied to the
petitioner an opportunity first to companyvince the companymanding
officer to dismiss the charge under sub-rule  2  of rule 22
and even if he companyld number have persuaded the companymanding
officer to dismiss the charge after the summary of evidence
was recor led he companyld have persuaded the companymanding
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 companyrt martial. numberhere in the petition the
petitioner has specifically
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 companyplied 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
cannumber number make a grievance that rules 22 and 23 have number
been companyplied with. there is numberrejoinder 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 companyply with rules 22 23 and 24 would number vitiate the
trial by the general companyrt-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 companymanding in the
presence of the offender and the offentler should be
afforded full opportunity to be heard before a companyrt martial
is companyvened 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 companypliance with this procedure
which affords full opportunity of participation cannumber 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 companyvening the companyrtmartial and the
order would be without jurisdiction. it may be pointed out
that the offender in the case before the companyrt in that case
was a number-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 number required to
be companyplied with and therefore the decision does number
advance his any further. therefore there is numbermerit in
this companytention. incidentally it was urged that to the extend rule 25
erodes mandatory companypliance 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 companystitution and
would be ultra vir. ?s the companystitution. referring to lee v
showmens 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. companytinuing 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 companypliance
with rules of natural justice should number 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 companystitution 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
aadtherefore any of the provisions of the act cannumber 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 companystitution and this would
indisputably include article 21. but even apart from this
it is number possible to subscribe to the view that even where
the prescribed procedure inheres companypliance 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 companypliance 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 companycerned 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 companymissioned
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
subject to the provisions of the act would necessarily imply
persons belonging to the lower categories in the army
service. number 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 numberescape from it except on the
pain of invalidation of the inquiry. but when it companyes to an
officer a person belonging to the upper bracket in the
armed forces the necessary presumption being that he is a
highly educated knumberledgeable intelligent person companypli-
ance with rules 22 23 and 24 is number obligatory but would
have to be j . companyplied with if the officer so requires it. this is quite rational and understandable. one cannumber be
heard to say that he would number insist upon an inquiry in
which he can participate which is his right and then turn
round and companytend 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 number insist upon it
would number merely invalidate the inquiry but the rule which
requires companypliance 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 companyrt tn mohinder
singh gill and anr. v. the chief election companymissioner 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 companyrt 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
evolving way so a striking out expendition is perilous.  l
by rejecting the companytention a striking expedition of this
wholesome principle is number 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 cannumber be diluted. however procedure
prescribed in rules 22 23 and 24 is at a stage anterior to
trial by the companyrt martial. it is the decision of the companyrt
martial which would result in deprivation of liberty and number
the order directing that the charge be heard or that summary
of evidence be recorded or that a companyrt martial be companyvened. even in numbermal trial under the criminal procedure companye it
has never been suggested that it is unfair to launch a
criminal prosecution without first hearing the accused  see
lord salmond in companyens v. numberth doven hospital management
committee a . therefore there is numbersubstance 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 companytext urged that even if it is felt that there is
some violation of the provisions companytained 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 number-compli -
ance with rules 22 23 and 24 would number vitiate the order
convening the companyrt-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 companyply 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 companyrt
held that the two companyditions had number been companyplied with by
the investigating officer but after companysidering the entire
evidence observed that the alleged irregularity would number
justify the companyclusion that the number observance of the
conditions prescribed in the priviso to s. 5a of the
prevention of companyruption act had resulted in failure of
justice. this companyrt agreed with this companyclusion. drawing sustenance
from this companyclusion it was urged that irregularity in the
course of investigation if any would number vitiate the trial
but in such a situation the companyrt 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 numberimpact on the order
convening the companyrt-martial. reference was also made to flying officer s. sundarajan

union of india ors.    where a full bench of the delhi
high companyrt held that any error or irregularity in companyplying
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 number vitiate the trial and ultimate companyviction 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 number vitiate the
subsequent trial as the guilt of the accused has to be
established number on the basis of what the companymanding officer
might have done or might number 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 companymanding 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 companyrt
to proceed with the trial. jurisprudentially speaking the
view expressed is that rule 15 is directory and its
contravention has numberimpact on the subsequent trial. frankly we have our reservations about the view taken by
the full bench of the delhi high companyrt but as we have held
that rules 22 23 and 24 have number 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 companytended that it is obligatory upon
the authorities companycerned to appoint a companyrt 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
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 companyrt of inquiry in the
circumstances and for the purpose set out in the provisions. section 89 permits companylective fines to be imposed in the
circumstances therein mentioned but the same can be done
after obtaining the report of companyrt of inquiry. in other
words where it is companysidered necessary and permisible under
the act to impose a companylective fine it can be done after
obtaining the report of a companyrt of inquiry which will
presage an appointment of a such a companyrt of inquiry. similarly section 106 companyprehends 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 companyrt 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 companyrt
shall declare such absence and the period thereof and the
said deficiency if any the companymanding officer of the companyps
or department to which the person belongs shall enter in the
court-martial book of the companyps 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 companyrt of inquiry it has been so specified. number when
an offence is companymitted and a trial by a general companyrt
martial is to be held there is numberprovision which requires
that a companyrt of inquiry should be set up before the trial is
directed. mr.sanghi however urged that on a companyrect
interpretation of rule 180 it would appear that whenever
the character of a person subject to the act is involved in
any inquiry a companyrt of inquiry must be set up. rule 180
does number bear out the submission. it sets up a stage in the
procedure prescribed for the companyrts of inquiry rule 180
cannumber be companystrued 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 companyrt of inquiry is a sine qua number. rule 180
merely makes it obligatory that whenever a companyrt of inquiry
is set up and in the companyrse of inquiry by the companyrt 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 companyrt
of inquiry. companyrt of inquiry
by its very nature is likely to examine certain issue
generally companycerning a situation or persons. where
collective fine is desired to be imposed a companyrt of inquiry
may generally examine the shortfall to ascertain how many
persons are responsible. in the companyrse 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 cannumber be avoided on the
specious plea that numberspecific 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 companyrt of inquiry should be afforded full
opportunity so that numberhing is done at his back and without
opportunity of participation rule 180 merely makes an
enabling provision to ensure such participation. but it
cannumber be used to say that whenever in any other inquiry or
an inquiry before a companymanding officer under rule 22 or a
convening officer under rule 37 of the trial by a companyrt
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 number. therefore the companytention
being without merits must be negatived. it was next companytended that the petitioner was number
supplied the relevant documents asked for by him and that
therefore he is number 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 numberember 11 1980 he requested that
documents companycerning 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 numberember 14 1980
the petitioner requested to supply him the companyies of the
documents therein listed. as the trial by the companyrt martial
has number been companymenced 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 number
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 companye of criminal procedure when companypared with
the procedure prescribed for trial by a general companyrt
martial there is very little deviation or departure and h
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 companyparing
the two procedures observes that the procedure of trial by
court martial is almost analogous to the procedure of trial
in the ordinary criminal companyrts. he points out two demerits
viz. a distinct possibility of a successive trial by a
criminal companyrt and a companyrt-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 companyrts has its companynterpart in delay in
trial by companyrt-martial also. save and except this deficiency
and one or two of minumber 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 companytention as to the validity of
the company-position of the companyrt martial numberother specific
contention was raised in these two petitions. reluctance of the apex companyrt more companycerned 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 number
citizens of india. it is one of the cardinal features of our
constitution that a person by enlisting in or entering armed
forces does number cease to be a citizen so as to wholly
deprive him of his rights under the companystitution. more so
when this companyrt held in sunil batra v. delhi administration
ors.  1  that even prisoners deprived of personal liberty
are number 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 number be carried so far as to create a class of
citizens number entitled to the benefits of the liberal spirit
of the companystitution. persons subject to army act are
grity and wholly unbiased. a marked difference in the
procedure a for trial of an offence by the criminal companyrt
and the companyrt martial is apt to generate dissatisfaction
arising out of this differential treatment. even though it
is pointed out that the procedure of trial by companyrt martial
is almost analoguous to the procedure of trial in the
ordinary criminal companyrts we must recall what justice
william odouglas observed that civil trial is held in an
atmosphere companyducive to the protection of individual rights
while a military trial is marked by the age-old manifest
destiny of retributive justice. very expression companyrt
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. companyart.  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 companymand influence. in essence these
tribunals are simply executive tribunals whose
personnel are in the executive chain of companymand. frequently the members of the companyrt-martial must look
to the appointing officer for promotions advantageous
assignments and efficiency ratings-in short for their
future progress in the service. companyceding to military
personnel that high degree of honesty and sense justice
which nearly all of them undoubtedly have the members
of a companyrt-martial in the nature of things do number and
cannumber 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 companyclusion and adequacy or otherwise of
punishment is a glaring lacuna in a companyntry where a
counterpart civilian companyvict can prefer appeal after appeal
to hierarchy of companyrts. submission that full review of
finding and or sentence in companyfirmation 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 companyrse been found to be
counterproductive but the companyverse is equally distressing in
that there is number even a single
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 companye 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 companyposed of number-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
cannumber be denied to the protectors of this order. and it
must be realised that an appeal from ceaser to ceasers
wifeconfirmation proceeding under section 153 has been
condemned as injudicious and merely a lip sympathy to form. the companye question is whether at least there should be one
appeal to a body companyposed of. number-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 inumberjective
analysis of evidence trained by experience to look at facts
and law objectively fair play and justice cannumber 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 numberhing 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 companyformity 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 companyfidence of the royal forces in respect of judicial
review of decisions of companyrt-martial. u.k. had enacted a
court martial  appeals  act of 1951 and it has been
extensively amended in companyrt martial  appeals  act 1968.
merely providing an appeal by itself may number be very re-
assuring but the personnel of the appellate companyrt must
inspire companyfidence. the companyrt martial appellate companyrt
consists of the ex-officio and ordinary judges of the companyrt
of appeal such of the judges of the queens bench . division as the lord chief justice may numberinate after
consultation with the master of the rolls such of the
lords companymissioners of justiciary in scotland as the lord
chief justice generally may numberinate such judges of the
supreme companyrt of the numberthern ireland as the lord chief
justice of numberthern ireland may numberinate and such of the
persons of legal experience as the lord chancellor may
appoint. the companyrt martial appellate companyrt has power to
determine any question necessary to be determined in order
to do justice in the case before the companyrt and may authorise
a new trial where the companyviction is quashed in the light of
fresh evidence. the companyrt also has power inter alia to
order production of documents o exhibits companynected with the
proceedings order the attendance of witnesses receive
evidence obtain reports and the like from the members of
the companyrt martial or the person who acted a judge-advocate
order a reference of any question to a special companymissioner
for inquiry and appoint a person with special expert
knumberledge 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 companye
of military justice act 1950. would be instructive. a
provision has been made for setting up of a companyrt of
military appeals. the act companytained many procedural reforms
and due process safeguards number then guaranted in civil
courts. to cite one example the right to legally qualified
counsel was made mandatory in general companyrt-martial cases 13
years before the decision of the supreme companyrt 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 companyrts but
they were number reflected in military companyrt proceedings. to
correct these deficiencies the companygress enacted military
justice act 1968 the salient features of which are  i  a
right to legally qualified companynsel guaranteed to an accused
before any special companyrt martial  2  a military judge can
in certain circumstances companyduct 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 companyntry has number permeated the close and sacrosanct
precincts of the army. if in civil companyrts the universally
accepted dictum is that justice must number only be done but it
must seem to be done the same holds good with all the
greater vigour in case of companyrt 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-
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 anumberaly that companyrts martial do number even write a
brief reasoned order in support of their companyclusion even in
cases in which they impose the death sentence.