LT. COL. PRtTHI PAL SINGB. BED! ETC. v. UNION OF INDIA & OTHERS

393 A LT. COL. PRtTHI PAL SINGB. BED! ETC. v. . UNION OF INDIA & OTHERS B August 25, 1982 • - Army Act. 1950-Section 21-Scope f!f-Law prescribing procedure for trial of offences by court mart ial-lf should satisfy requiremen~s of Article 21 of

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

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

In their petitions .under Art. 32 of the Constitutioff it was 'contended on behalf of the petitioners that to satisfy the requirements of Article 33 the Jaw. must be a specific law enacted by Parliameni in which a specific provision impo- _sing restrictioti or eveh abrogation ..fof fundamental rights ~h<;!uld be made; F (2) that rule 40 of the Rules should· be so construed as to subserve the mandate of Article 21 that the Army with its total commitment to national security against for~ign invasion. must be assured the prized liberty of individual members against

• unjust encroachment and the court should strike a just balance between military discipline a~d. individual personal liberty; aiid (3) that principles of natural justice should be obsefved even in resp.eel of persons tried by the Army Tribunals. ·

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

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

A 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. l (404 F-H; 405 A-BJ \ Article 33 of the Constitution which confers power on Parliament to deter- mine to wha;t extent any of the rights conferr~d by Part III shall in their ,pplica~ B tion to the members of armed forces be restricted or abrogated does not obligate. that Parliament must spec~fically adumbrate each fundamental right and specify in the law the degree of restriction or total abrogation of each right. That would be reading into Art. 33 a requirement which it does not enjoin. The power to legislate i_n respect of any iteffi must be referable to any entry in the relevant legislative list. ThC law has 'to be enacted by Parliament subject to the require- ment of Part III read with Art. 33 which itself forms part of Part III. Therefore c if any provision of the ·Army Act is in conflict with fundamental rights it shall have to be read subject to Art. 33 as being enacted with a view to either restriCt- ing or abrogating the fundamental rights to the extent of inconsistency or repug- . nancy between Part III and the Army Act. (412 E-H]

Ram Sarup v. Union of India & Another (1964] 5 SCR 931 : referred to.· D Sectic~n 21 of the Army Act merely confers an additional power to modify dghts conferred by Art. 19(l)(a) and (c) by rules and such rules may set out the limits of 'restriction. But the specific provision does not derogate from the gene- rality of po_wer conferred by Art. 33. Therefore, it is not possible to accept the co-ntention that the law prescribing procedure for trial of offences by Court Martial DJust satisfy the requirement of Art. 21 .because to the extent the proce- dure is prescribed by law. and if it stands in derogation of Art. 21 to that extent. E Art. 21 !n its application to the Armed Forces is modified by enactment of the . . - procedure in the Army Act itself. (413 E-G]

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

Rule 40 which deals with composition of the court martial enjoins botb F a positive and negative requirement,: positively that it shall be composed of officers of different corps or departments and negatively that it shall not be com- posed exclusively of officers of the corps or the department to which the delin- quent belongs. Both these requirements are sub-ject to the overriding considera- tion that one or the other requireri:ient' could be given a go.bye if it is othewise found.not to be practicable. [418 A-C] • G The expression '•Army corps" does not carry the same meaning as 'corps'. The two expressions carry different connotations. Both connote a distinct and different unit in the army. Corps forms a small part of what is called "army corps". [420 DJ

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

PRITHIPAL v, UNION 395

company not forming part of a ·battalion and may be independent of any battalion. Rule 187 (3) (b) treats such unattached company not fOrming part of a battalion as a crops b)> itself. In other words~ eve.ry company is part of snme. j battalion because each battalion is sub~divided into companies arid that is possibly the army unit which is being designated as crops. Bearing in mind the designation of battalion in infantry and regiment in cavalry, the unit designated • as battalion or regiment will be a crops 'for the purpose of the Act and the Rules. · This conclusion is reinforced by reference to rule 187 (1) in which there are separat~ bodies of persons ea(;h by its very designation 1 duties and responsibilities, and functional requiremeqts would not be .part of regUlar army battalion and, therefore,. each has tO be designated as a corps for the purpose of the Act atid •I the rules. (419 HJ

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

To put the personnel of the general court-martial beyond reproach and to ma~e it unbiased and objective ·composition of the court-martial was so devised by statutory rules as to make it a~ ideal body having all the trappings of a court. F People drawn from different ·corps, and ~voidi.ng officers of the s8JJ1e corps coni- posing the geaeJ;"al court martial, would ensure an objective unbiased body. This · is achieved by giving the expre$sion :•corps" a .restricted meaning so as not to make it synonymous with Army Corps at the top, If a battalion or a regiment is t!eated as a 'corps' then it is easy ~o. provide composition of court martial in ~trict compliance with rule 40. Viewed from .either angle the expression 'corps' in rule 40 is not used in the same sense in which the expression 'army corps' is G used. It is used in the sense in which it is defined and elaborated in rule 187. [422 E-H; 423 A-DJ

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

396 SUPREME COURT REPORTS [198'.i) I s.c.R, conv~ning offi'cer·.' This' depends on what meaning one must assign to a loose expression 1ike 'command influence' and 'influence of superior officers'. These expr.ession haVe. to be understvod ·in the context of the vertical hierar~hy ·in the L composi,tion of army. Once it transpires· that the expression 'corps' in rule 40 hos the same meaning as has been set oUt in rule 187 and, therefore the battalion would be a corps and an unattached companY can l:Je a corps by itself, it becomes ' easy and pr'acticable to set up a court~n1artial in which officers 'outside the corps B to which an accu~ed belongs are enlisted and it could certainly be said to be .free from command influence. [423 E·H] ·

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

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

In the instant case the general court-martial set up to f.ry the 'petitioner in Writ Petition No. 4903/81 consisted of.five officers one of whom was of a higher -~ank and the others were of coOrdinate or of equal rank. Even though· all of 1 " ' them belonged to the 9th Infantry Division they were ·drawn from different brigade:s and regiments and none of them belonged to the same corps to which the ' (1 petitioner belonged and none was lower in rank than the rank held bY the peti- tioner~ Therefore the reQuirement of rule 40 was strictIY complied with. [425 B-E]

In the case of the petitioner in Writ Petition No. ·1513/79 the general couri- martial was composed of seven officers, each of whom held a rank higher than the petitioner was n~ne _of them belonged tO the corps to which he belonged. There . was therefore no violation of rule 40. [425 F-H] G ·The petitioner in Writ Petition No. 5930/80 belonged to the 33 Army Corps. None of the qfficers composing the general court~martial belonged to his corps nor was any of .tl:}em' lower in ~ank than a C_apta in. Therefore. there was nothing to show that rule 40 had been violated. [42~ A·C]

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

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

presiding officer and the members composing the court ~artial be read out and the accused be asked whether he objects to his being tried by any of the officers -sitting on the court. If the accused objects to any such officer being present his objection and reply of the officer objected to shiill be heard and recorded and the remaining officers of the court shall in the abseoe;e_ Of the- chaUenged officer decide the objection. This provision is elaborated iti rules 41 to 44. In order to ensure that any orie objected to does not participate i1;J° diSposing of the objection, clause (8), of the proviso .to rule 44 directs tba~ the accused should state the names of all officers· constituting the court in respect of whom he has· any objection. This is a mapdatory requirement because the officer objected to cannot participate in the decision disposing of the objection. It is true that if a court is not constituted,, . 'in accordance with the Act and the Rules, rule 44 would hardly assist becaUse as in such a case if the contention is that rule 40 was violated there is none left to 1 dispose of the contention; because once such an objeciion is taken no one shall be competent to decide the objection. The provision conferring the right on the c accused to object to a 'meJDber of the court-martial sitting as a member ·and parti- cipating in the trial ensure that a charge of bias could be made and investigated against individual members col!lposing the court-martial. · This is a pr~-eminently rational provision for ensuring a fair trial. In the present case however there was no allegation of bias against any individual member of the court-nlartial; . , [426 D-H; 427 A-FJ D Rules 22 to 24 are n1andatory in respect -Of every person subject to the~ Act other .than officers. TJ:tat the requirem\,nts of these rules are not mandatory in the case bf an officer, becomes. manifestly clear from rule 25(1) which provides that where an officer is ·Charged with an offence· under the ACt the investigatio_n shall if he requires it be held and the evidence if he so r~quires it, be taken in his • presence in writing in the same manner as nearly as circU:mstances .admit,as iS required by rules 22 and 23 in the case of !)ther persoi;is subject to the Act. E [432 B-C]

The petit.ioner in this ca~ ·being an offi~er, the prOcCdure prescribed in rules 22 and 23 would not, apply proprio vigore to him. If he wanted comp- liance with rules it was for him to have made a reqllest that the inVestigation be done in bis preseDce and that the summary of evidence be' drawn in his Pr~sence. Nowhere ·in the petition did the petitioner specifically state that he did make such F a recjue~t. In the absence of such a request failure to comply with rules 22 to 24 woul.d not vitiate the trial by the generiil court ma:rtial. [432 D~E; 433 A-CJ

. Rtx v. Thomson [1946] \4 ,Domiiiion Law Reports 579, held ioappJi- cable. · G There is nO force in the argUment that to the Cxtent th;t the applicaiion '< of principles of nittural justice enacted in rules 22 to 24 is ma.de dependent on the demand by the officer concerned, compliance with ruICs of natural justice must be deemed to be an integral part of the procedure prescribed for a. tribunal whose decision is likely to result in deprivation of personal libert;. Parliament· ha~ the power to restrict. or abrogate any of the rights conferred by Part Ill in H their app1ication to members of the Armed Force so as to ensure proper discharge of ditties and maintenance of discipline amongst them, The Army·!Act is one . I

p. 398 Copy page pinpoint

A such law. Therefore none of the rprovisions of the Act can be struck down on the only ground that they restrict or abrogate or tend to restrict or abrogate any of the rights conferred- by Part III which include Art. 21. If the procedure l estabJished by law prescribes compliance with principles of natural justice but m~kes it dependent upon a requisition by the person against whom an inquiry has to be held such procedure would not be violative of Art: 21. [434 B·!'l

B In the instant case the rules have made a clear distinction between an officer governed by the Act and any other person subject to the Act. T_he accused was a person belonging to the upper bracket in the Armed Forces. Although in 1 respect Of persons belonging_ to the lower category rules 22 to 24 are mandatory, • in respect of persons belonging to the upper bracket the necessary iJresumpOon is A that he is a highly educated knowledgable intelligent person and compliance with thes:e rules is not obligatory. But the rules have to be complied with if the officer ' c so requires it. This is quite rational and understandable. An officer cannot be heard to say that he would not insist upoi:i an inquiry in which he would partici- ~ \ .. pate and then turD. round and contend that failure to hold the inquiry in accor- dance with the principles of·natural justice would invalidate the inquiry. [434 G·H; 435 A·C]

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

Rules 22, 23 and 24 prescribe participation at a stage prior to the trial by the court martial. In a trial which is likely to result in deprivation of liberty the body which bas ultimately the power to make an order which would result in deprivation of liberty must hear the offender offering full participation. How- E ever, the procedure prescribed by these rules is at a stage anteriOr to the trial by the court-martial. · It is the decision. of the court martial which would result in deprivation of liberty and not the order directing that the charge be heard or that summary of evidence be recorded or that a court martial be convened. There is therefore no substance in the contention that rules 22, 23 and 24 in view of the provision contained in rult 25, are ultra vir~'S Art. 21 of the Constiution. As failure to comply with the requirements of rules 22, 23 and 24 depended upon a requisition by the petitioner, his illaction or onlission in that behalf would have no impact on the order convening the coun martial. (4350-H; ,436A~C]

Major E.G. Barsay v. The State of Bombay, [1962] 2 S.C.R. 195 referred

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

. rRJTHiPAL v. UNION (Desai, J) 399

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

. Absence of even one ·appeal with power to review evidence, legal formu .. tatlon, Conclusion and adequacy or otherwise or pui:i.ishment is a glaring iacuna in a country where a counterpart civilian convict can prefer appeal after appeal to hierarchy of courts .. The time has come when a step is required to be taken . n for at least one review and it must truly be a judicial review as and by way of ,, • appeal to a body composCd-of non-military personnel or civil personnel. · · [441 F-G; 442 BJ

. ORIGINAL JURISDICTION Writ 'Petition-~Nos. 4903 of 1981, . · 1513of1979 and 5930of1980. C· ' (Under Article 32 of the Constitution of India)

.; G.L. Sanghi, Ashok Grover and Girdhar Govind for the Petitio- . • . ·ner in W.P. :No. 4903of1981. · ~- D M.K. Banerji, Additional Solicifor General, Girish . Chandra a~d Miss A.' Subhashini for. the Resp()ndents in W,P; No. 4903/81. •. ' •·' V.M. Tarkunde, If.C. Agarwala, V.K. Pandita and P.N. Ra_ma- E fingam for the Petitioners in \V.P. Nos. 1513/?9 & 5930/80.

M.K. Banerji, Additional Solicitor General, Girish Chandra and Miss A. Subhashini for the Respondents in W.P. Nos. 1513/79 & 5930/80. '~ . .F • The Judgment of the Court was_ delivered by • DESAI. J. Validity and legality of an order made _again&! each petitioner convening General Court Martial to try each petitioner in· •respect of the charges framed against each of them is questioned. on G · diverse grounds ·but principally the composition in each of these petitions under Article 32 of the Constitution. In Writ Petition · No. 4903/81 the petitioner has also challenged the constit~tional validity of rules 22, 23, 25 and 40 of tl:ie Army Rules, ·1954 {'Rules' for short) as being violative of.the fundamental rights of the peti· H tioner .guaranteed under Articles/14 and 21 of the Constitution. - AS certain contentions were com~on .to all the three petitions they were ' ' . I•

400 SUPREME COUF.T REPOll.TS [1983) 1 S,C,R. A heard together and are being disposed of by this common judgment. Facts alleged on which legal formulations ·were founded may be briefly set out in respect of each petitioner. ·

Re : Writ Petitfon No. 4903/81 :

Petitioner Lt Col. Prithipal Singh Bedi was granted permanent · regular commission in the Regiment of Artillery in 1958 and in course of his service he came to be• promoted as Captain, then as Major and at the relevant time he was holding the rank of Lt. Colo- nel and in that capacity he was designated as Commanding Officer, 226, Medium Regiment of 43 Artillery Brigade. As part of his duty he had to write interim confidential reports of five officers of the rank of Major subordinate to him. One Major R. S. Sehgal was ope of the su~ordinate officers whose interim confidential report was written by the petitioner. Under the relevant rules the officer whose confidential report is written by his superior has to be· shown the confidential report and in token of his having seen the same his . signature is to be obtained, .the purpose underlying this procodure being that the attention of the subordinate officer is drawn to the counseJling remark in the confidential report which may encourage him to remedy the defect pointed out and · to improve in his efficiency. The confidential reports prepared by' the petitioner were to be reviewed by the Brigadier. It is alleged that Brig .. N. Sondhi, A VSM who held the office of ·the . Brigadier and .. under whom the petitioner was working as Lt. Colonel at· the time of writing reports had already been transferred on January 8,. 1980 and therefore, the confidential reports submitted by the petitioner were required to be reviewed by the officer who occupied the office of Brigadier consequent upon the transfer of Brig. N. Sondhi. It is admitted that petitioner had also received his order of transfer dat~d' February 6, 1980 but he left the charge on February 26, ·1980, after co;npleting the formality of handing over charge and also writing the interim confidential reports . which he was bound to complete before proceeding on transfer. It is G . alleged tliat Major R.S. Sehgal in respect of whom petitioner wrote the confidential report on February 20, 1980, which contained a counsellipg remark advers.e to the officer was a near relation of Brig. N. Soridhi. It is further alleged that even though Brig. Sondhi had al- ready been transferred and had left charge, yet on February 25,1980, H the confidential reports were forwarded by the Headqu,,rters 43

PRITHIPAL v. UNION (Desai, J.) 401

Artillery Brigade to Brig.· Sondhi for reviewing the same. While so reviewing the confidential reports, Brig. Sondhi .addressed a query with respect. to the last sen.tence in para 27 in the confidential report of Major Sehgal; "that the last ·sentence appears to have been written possibly at a different time. It is suggested that a confirmation may be asked for from the ~fficer as to whether he was aware of the complete para prior to signing. The ICR may thereafter be returned for onward despatch". Suspicion underlying. this query is that adverse entry reflected in the last sentence of para 27 was interpo- lated after the confiential report was signed by Major Sehgal. The auspicion arose OD• the Visual impression that : (a) there is Change in ink of last line; (b) last line appears to have been written .over the signature of the officer reported upon ; (c) size of lettering of the c • .last line is smaller than the rest of the para. It may be mentioned that ultilllately this alleged interpolation in the interim confide~tial . report after the same having been initialled by the officer reported upon is the gravamen of the charge under s.ection 45 of the Army Act on which the petitioner is called upon· to face a trial · by the General Court Mart,ial convened under the impUg'ned order dated D April II, 1981.

Re: ·Writ Petition No.1513/79: .

. The first petitioner Captain Dha,rampal Knkrety and Petit.lfper 2 Naik Bhanwar Singh were both attached ,at the relevant time to 2 Rajput Regiment but since the order to try t!iem before a General Court Martial both of them are attached to 237 Engineer Regiment of 25 Infantry Division which is a part of the 16th Corps of the Indian Army. Petitioner I was promoted as Acting Major but be- cause of the direction to try him before a Court Martial he has been reverted to the substantive rank of Captain. Petitioner 2 holds the substantive rank of Naik. In 'the. year .1978 one Lt. Col. S. N. Verma was the Commanding Office~ of the 2 Rajput Regiment and 'the !st petitioner was directly under him being secon'd in command. One Major V.K. Singh belonging to the 2 R~jput Regimenf was a G Company Commander under Lt. Col. Verma. He applied for casual leave for seven days and Lt. Col. Verma granted. the same. In the meantime on October .14, 1978, Lt: Col. Verma proceeded on leave. First petitioMr being the second· in command was. officiating Commandi.ng Officer when Lt. Col. Verma proceeded on leave. On H October 16, 1978, the !st ·petitioner informed Ml'jor ·V.K. Siniih

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

A that he could proceed on leave with effect from October, 17, 1978; for a period of seven days. Major V.K. Singh, however, overstayed his leave and returned after lO days. Petitioner contends that he being a strict disciplinarian, he did not approve of the default of Major Singh and, therefore, he reported the matter to Lt. Col. B • Verma on his return from leave who in turn asked the !st petitioner tci make investigation and submit report. On tlje I st petitioner making the report, Lt. Col. S.N. Verma ordered abstract of e'idence to be recorded by framing some charge against Major V.K. Singh. , The iillegation is that the father-in-law of Major V.K. Singh is c Deputy Speaker of Haryana State Legislative Assembly and a man of powerful political influence who appears to have contacted third respondent Lt. General Gurbachan Singh to assist his son-in-law Major V.K. Singh. It is alleged that when Major V.K. Singh was produced before 7th respondent Brigadier P.N. Kacker, the latter appeared reluctant to proceed against Major V.K. Singh. First D petitioner sought an interview with 7th respondent and insisted that disciplinary action should be initiated against Major V.K. Singh.· First petitioner sought an i~terview with 5th respondent on Decem- ber 161 1978. Major V.K. Singh was awarded 'displeasure' which appears to have infuriated the first petitioner because according to him punishment was disproportionately low compared to default; It is alleged that 5th respondent suggested th>1t !st petitioner be put E. o~i\FMS-10 for psychiatric investigation. !st petitioner sought a't'Mtchment to other unit, certain very untoward incidents followed whicl,l are detailed in the report of Court of Inquiry set up for ascertaining the fact.s which are not necessary to be detailed here. !st petitioner !1as set out in his petition chronology of events leading to his being charge-sheeted. Ultimately, an order was made to try F him by a General Court Martial and. a General Court Martial was convened as per the. order dated October 7, 1979. The legality and validity of the order constituting the General Court Martial is impugned in this ?ehtion.

G Re : Writ Petition No. 5930/80

.Petitioner Captain Chander Kumar Chopra joined the Army as 2nd Lieutanant on January 12, 1969, and in course of time came to be promoted as Captain and at the relevant time he belonged ·to, 877 At BN. ASC under 20 Mountain Division which is one of the H Divisions in 33 Corps. Petitioner was second-in-command. On February 12, 1979, the petitioner sought a persoi:rnl interview with

PRITHIPAL v. UNION (Desai, J.) 403

CO Lt. Col. R.M. Bajaj to report against Major S.K. Malhotra for the irregularities· committed in the Company disclosing misappro- priation of funds, pilferage of petrol and stores, furnishing of false -i. information and certificates in official documents resulting in loss to the State, misuse of transport and misuse of power and property. As Lt. Col. Bajaj did not possibly take any action on this report, B the petitioner oil March 7, 1979, submitted an application to the Chief of Staff, Headquarters, 33 Corps c/o 99 APO to brillg to the notice of Chief of Staff the irregularities going on in 'A' Coy. 877 , , AT BN ASC and seeking an interview at an early date. The petitioner's request for a personal interview was turned down where-

• ' upon the petitioner made an application for casu.al leave for 13 days c w.e.f. February 26, 1979, which appears not to have been granted. ''1111111. On March 16, 1979, the petitioner was summoned by Lt. Col. Bajaj, ,.. at his residence and he was assured that justice would be done but . the petitioner should cancel the letter dated Mar~h 7, 19.79, and surrender .the demi official letter addressed to Coy. 33 Corps in the ) interest and name of the Unit. Thereafter the petitioner Wl\S taken D to office by Lt. Col. Bajaj and it is alleged that under pressure, letter dated March 16, 1979, written in, the petitioner's own hand as dict.ated by Lt. Col. Bajaj was taken and at the same time a number of certificates were also taken from the -petitioner. A Court of Inquiry was set up to inquire into the allegations made against Major Malhotra by the petitioner. The Court of inquiry commenced · "' investigation on August 27, 1979. The petitioner submitted a request > to summon 15 witnesses to substantiate his allegation against Major Malhotra. Probably this request. did not find favour and the petitioner entertained a suspicion th.at the members constituting the Court of Inquiry were highly prejudiced against him. The Court of Inquiry submitted its report. It is not necessary to recapitulate the 'F findings of the Court of Inquiry save and except that not only the "'"- Court of Inquiry negatived all the allegations of petitioner against '1:-Major Malhotra but on the contrary found that the petitioner had taken · some · store items unauth~risedly on January 30, 1979, which • were returned'on January 31, 1979 Pursuant to the findings .or the Court Of Inquiry a charge-sheet was drawn up again.st the petitioner G for having· committed offences under sections 52 (b), 56~ (a) and 63 - of the Act. Dire.ction was given for recording summary of evidence. Subsequently the impugned order convening the General Court Martial was, issued., The peiitioner··thereupon filed :the present ... ,; petition. · H

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

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

B The contention is · that the Constitution of General Court Martial in each case is illegal and contrary to rule 40 and, therefore " the order constituting the General Court. Martial in each case must be. quashed. ,,. er The 'web of argumen·t is woven round the true construction and intendme.nt underlying rule 40.. It was said 'that the grammati- cal construction must accord with .the un(lerlying intendment of rule 40 and that the approach must be· informed by the expanding ,jurisprudence and widening horizon of the subject of personal liberty- in Art. 21 because in the absence of Art. 33 the procedure prescri- D bed for tri.al by the General Court Martial under the Act would have '· been violative of Art. 21. App roach, it was >nged, must be to ptit such liberal construction on rule 40 as to sub-serve the mandate of Art. 21. Army, with its total commitment to national independence ' against foreign .invasion must equally. be assured the prized liberty of individual member against. unjust encroachment. It was said E that the court should strike a just balance between military discipline and indivic!µal personal libetry. And door must not be bolted against principles of Natural justice even iri respect of Army tribunal. An unnatural distinction or differentiation between a civilian offender and an offender subject to the Act would be destructi_ve of the cherished principle of equality, the dazzling light of the Constitution which illumines all other provisions.

The dominant purpose in construing a statute is to ascertain the intention of the Parliament. One of the well recognised canons of construction. is that the legislature speaks its mind by use of • correct expression and unless there i~ any ambiguity in the Japguage of the provision the Court should adopt literal construction if it does not lead to an absurdity. ·The first question to be posed is whether there is any ambiguity in the language used in R11le 40. If there is none, it would mean the language used, speaks the mind 'or H Parliament and ;there is no need to look SOJ!lewhere elese discover \he intention or !lleatiing. · If the 'literal co11structio11 ·leads to'an

PRITWPAL v. UNION (Desai, J.) 405

_absurdity, external aids to construction can be. resorted to. To A ascertain the literal ineaning it is equally necessary l)rst to ascertain ) , the juxtaposition in which th~ rule is placed, the purpose for which -1 ~ it is enacted and the object which· it is required to' subserve and the authority by which the rule is framed.. This necessitates examination · of the broad features of the Act. B The Act'as its long tille would show was enacted to consoli- ,. ·date and amend the law relating to the governance of the regular Army and.ii came into force on July 22, 1950. Section 2 sets out ~ the persons subject to the Act. S~ctiqn 3 provides the. dictionary. clause. Sub-section (2) of section 3 definces·, 'civil offence' to mean c ..... an offence which is triable by a criminal court; Expression 'corps' is defined in section 3 (vi) to mean any separate body of per~ons subject to' the Act which is prescribed as a corps for the purpose of all or any of the proVisfons · of the Act. 'Department' has been defined in ~ placitium (ix) to include any divJsion. or branch of a department. Chapter III deals with the commission; appointment and·enrolment of Army personnel. Chapter IV seis out the statutory conditions of service and Chapter V deals with service privileges. Chapter VI. sets out various offences made punishable by the Act. Section 69 provides. that subject to the provisions of section 70 any person subject to,the Act who at any place in or beyond India commits any • civil offence shall be · deemed to 'be guilty of an offence _against the E > Act and· if ch.arge.d therewith under the, section, shail be liable to be • I tried by a court-martial and, on conviction, be punishable in the manner therein prescribed,. This .provision would show' that if any person subject to the -Act commits any o!fence triable by ordinary criminal court which for the purpose of the Act 'would be a civil ~ · - offence, is liable to.be tried for the same, though not an offence ~ u.oder the. Act, by the court martial and be punisha.ble in the manner '"-prescribed in. section 69. Section· 70 carves out an exception in respect of certain civil offences· which cannot be tried by a court ' · martial. In view of the provision prescribed i,n section 69, a situa- tion is bound to arise where an ordinary . criminal court and the court martial both will have jurisdiction to try a person for having committee a certain: civil offence. .To avoid cnnfiict of juris: diction, section 125 is en.acted conferring a discretion on rhe officer· . commanding ·the ai:my, army corps, division: or independent brigade .;. in which the accused person is serving or such other officer as may f-{ · . be prescribed to decide_ before which court the proceeding shall be

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

A instituted and if that officer decides that it should be instituted befor~ a court-martial, to direct that the accused person shall be detained in' military custody. Section 126 confers power on the criminal court to require the officer who has decided to nse his discretion in favour ,l of couri-martial under section 125, to deliver the accused to the nearest roagistrate to be proceeded against according to law; or he B may direct the officer to po~tpone proceedings pending a reference to the Central Governinent. . On such a reference being made, the Central Government will l:tave power to determine whether the per· son should be tried by an ordinary criminal court or by· a Court· Martial and the decision'of th6 Central Government in this behalf is rendered final. A successive tiral by a court-martial and the ordinary c criminal court is distinctly possible in view of the provision contained in section 127. Chapter VU sets out the various punishments which can be imposed under the' Act., Chapter VIII deals with penal deduc- tions that can be made from the, pay and allowances of an officer. Chapter IX provides for arresl: and proceedings before trial. Section ••-.' 108 in Chapter X provides that there shall be four kinds of court· D martial': (a) general courts-martial; (b) district courts-martial; (c) summary general courts-martial; and (d) summary courts-martial. Section 109 to 112 confer power on various authorities to convene one or dther kind of court·martial. Section 113 provides for com· position of General Court-Martial and Ii may be extracted :

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

Section 118 confers power on general or summary general court· martial to try any person subject to the Act fot any offence punish- able therein and to pass any sentence authorised thereunder. Chapter XI prescribes procedure of court-martial. Sec. 129 provides that every court-martial shall, and every district or summary general court martial may, be attended by a judge-advocate, who shall be either I '

G an officer belonging to the department of the Judge-Advocate General, or any of his deputies. Section 130 of the Act is important and it may be extracted :

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

PRITlllPAL v. UNION (Desai, J.) 407

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

1 (2) .If .the accused objects to any such officer, his

objection and also the reply thereto of the officer objected to, shall be heard end recorded, and the remaining officers of the court shall, in the absence of the. challenged officer · decide.on the objection.

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

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

Section 133 provides that the Indian Evidence Act, 1872, shall, .sub- i ject to the provisions of the Act, apply to all proceedings before a E • court-martial. Chapter XII provides for confirmation of the finding and sentence and revision thereof. Chapter XIII deals with the execution of ~enience awarqed by court-martial.. Chapter X!Vdeals ' with pardons, remissions ~d~ su-spei;isions ot sen.tence. Section 191 in Chapter XV confers power to make rules for the ·purpose of carry- ing into effect the provisions of the Act and without prejudice to the F generality of the· power so conferred by sub-section(!), the rules ,made inter a7tti may provide for convening and constituting"of court- . martial and the appointment of prosecutors at trials •by courts-mar- tial adjournment, dissolution. and sitting of court-martial and the procedure t.o be observed in trials ·by courts-martial and the appear- ance oflegai practitioners· threat. · - ' G ' Armed with these powers Army Rules 1954 have been framed. To begin with, the Rules in Chapter V may be noticed. Rule 22 prescribes procedure for headng of charge at a 'stage anterior to the H convening of. •court-martilll. After_ this prelimina_ry hearing

i 40$ SUPRBMil COURT REPORTS (1983] I s.c.il. .A of the charge, if further act}on is contemplated, rule 23 prel!Cl'ibes procedure for . recording summary of evidence. · After recording summary of evidence rule 24 enables the Co!'lmanding Officer either to remand the accused for trial by a court-martial or refer the case to the proper superior military authority· 'or if he thinks it desirable~ · re-hear the case and either dismiss the charge or dispose of it sum- 8 marily. Rule 25 provides procedure fot inquiry of charge against an offi~er, 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.

0 Rule 28 sets out the general format of charge-sheet and rule 30 ' prescribes contents of charges. Rule 33 enacts detailed provisions for preparation for defence by the accused which amongst others confer a right on the accused . person to interview any witness he wishes to call for his defence arid an i:mbargo on censoring his corres- D a . pondence with liis legal advisers as also prohibition on interviewing the witnesses whom the accused wishes to call in his defence. Rule 34 provides for ·assistance to the. accused to summon his witnesses. Rule 37 provides for convening of general and district courtscmartial. Rule 37(1) and (2) were relied upon ·in support of a submission by Mr. Sanghi, which providesthai the cOJ;1vening officer before conven- E ing.court martial has to satisfy h.imself that the charges to be tried • by the court are for offellces within the meaning of the Act and that the evidence justifies a trial of those charges and if not so satisfied, he is entitled to order the release of the accused or refer the cas_e to the superior military authority.

Rule 41 prov.ides that on the Court asse~bling, the order con- F vening the court shall be laid before it together with the charge-sheet and the summary of evidence or a irue copy thereof and also names, ranks .and corps of the officers appointed to serve on the Court. A duty is cast on .the court to satisfy itself that il is legally constituted and one such duty being tliat the court, as far-as it can ascertain, shall satisfy itself.that it has been convened in accordance with the provisions of the Act and the Rules and that each of the officer com- posing the court-niartial is eligible and·not disqualified for serving on that court"martial and further in case of a general court-martial, the officers are of the required rank. After the court bas satisfied itself about its constitution, it shall cause the accused to be brought before it as provided in rule 43. Rule .44 enables the accused as required by section 130 ofthe Act to state whether he Joas any objec- \

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

tion to be tri.ed by any officer sitting on the Court. A detailed pro- A .ced_ure is prescribed.for disposing of the objection. Elaborate trial' prncedure is prescribed in the event the accused pleads not guilty and barring minor· situational variants the procedure prescribed is , analogous to the one prescribed· in the Code of Criminal Procedure for trial of an accused by the Court of Sessions. A reference _to rule 95 is advantageous. It enables an accused person to be represented B by any person subject to \he Act who shall be called the defending - officer or ·assisted by any person whose services he may be able

- .... to procure and who shall be called the friend of the accused. _Rule 96 confers power subject to the Rules on, ·the Chief of the Army Staff to permit counsel to appear on behalf of the prosecutor and the accused at general and district courts-martial if the Chief of the · - C' Army Staff or the convening officer CleClarcs that it· is expedient to allow the appearance of:counsel thereat, and such declaration may be _ made as regards all general and district court;martial held ;at any particular place, or as regards any particular general or district point martial, and may be made subject to such reservation as .to cases on active service, or otherwise, as seems expedient. In case of a general, D court'martial where it is obligatory to ass~ciate a Judge-Advocate, rule 105 provides for powers duties and obligations of the Judge- ' Advocate; one such being that' both the prosecutor and the·accused are entitled to his opinion on any question of law relating to the ,. charge or trial. ·,Rule 177 provides for setting .up- of a Court of E ) 'Inquiry its composition and· .the subsequent rules provide for the procedure to be followed by a Court of Inquiry. Rufo 180. provides that whenever an inquiry affects the character or military reputation . of a person subject to the Act, full opportunity must.be afforded to ·such person of being pre~ent throughout the inquiry,- and of making any statement and of giving any evidence he may wish to make or F 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 ch_aracter or militar1 reputation of a person subject to the Act is involved it is obligatory to set up a Court of Inquiry, On a plain reading of rule G 180, the submission .is without merits but that would" come later. · Rule 187 has reference to s. 3(vl}. It pr~cribes that bodies of persons 0

subject to the Act are to be treated a 'Corps'· for the purpose of ,, Chapter III · and s. 43(a) . of the Act aud Chapters II and III of the Rules. H

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

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

.• "33. Power to Parliament to modify the rights confer- red by this Part in their application to forces : Parliament may by law determine to what extend an~ the rights con- r B ferred l>Y this Part shall, in their application to the members of the Armed Forces or the Forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties, and the maintenance of discipline among them." ' - 'c ' '

Chapter IV in the Rules specifies restrictions on the fundamenal .rights. Rule 19 prescribes restrictions on the fundamental freedom ·under Art. 19(1) (c), to wit, to form associations or unions. 'similarly rules 20 and 21 prescribe restrictions on the freedom of speech and expression guaranteed under Art. 19(1) (a). No contention was advanced before us in respect of restrictions pr,e'scribed by rules D 19, 20 and 21 "on the freedom of speech. and expression and the freedom of forming associations and unions, The contention was that a trial by a court-martial would result in deprivation of personal liberty and it can only be done in view of Art. 21, by procedure established by law arid the law prescribing such .procedure must satisfy the test prescribed by Arts: 14 and 19. It was contend- ed that in view of the decision in Maneka Gandhi v. Union a/India(') . . the law to satisfy the test of Art. 21 must be just, fair and reasona- ble and if the procedure prescribed by the Code of Criminal proce- dure for trial of ·offences is just, fair an.d reasonable, any deviation therefrom in the. procedure prescribed ·for trial by court-martial would' neithe~ be just, fair nor ·.reasonable and it would be violative of Art. 21. The question really is, bow far this contention about violation of Art. 21 is available in view of the provision contained in Art. 33. The contention is that "ill' order to satisfy the require- ment of Att. 33, Parliament must enact a specific law specifying · therein the modification of the rights conferred by Pa'rt III and that G a restrction or abrogation of fundamental rights. cannot be left to be deduced or determined by implication. In other words, the submis- sion is that the law to satisfy the requirement of Art. 33 must be a specific law enacted by Parliament in which a specific provisio!l

(IJ [1978] 2 SCR 621. ff •

PRITHIPAL v. UNION (Desai, J.) 411 A imposing restriction or even abrogation of fund~mental rights should j be mad.e and wlien such provisions ·are debated by the Parliament it 'would be clear as to how far restriction is imposed by Parliament on the fundamental rights enacted· in Part III in their' application .to the members of the Armed Forces or the forces charged with the maintenance of ·public order. Submission is that. a conscious· and B · deliberate Act of Parliament may permit erosion of fundamental • rights in their application to Armed Forces. Such a serious inroad • · on fundamental rights cannot be left to Central Government to be done by delegated legislation. Article 33 permits Parliament by law to not'merely restrict but abrogate thefon.damental rights enacted, in Part III in their application to the members of Armed Forces. The act was enacted in 1950 and. was brought irito force on July, . 1950. Thus the·Act was enacted after the Constitution came into force on January 26, 1950. When power to legislate is conferred by Constitution, and Parliament enacts a legislation, normal inference is that the legislation is enacted fo exercise ·of legislative power and legislative .craftmanship diies no.t necessitate specifying the powers D Since the Constitution came into force, Parliament presumably was aware that its . power to legislate must be referable to Constitution and therefore it would be subject to the limitation prescribed by the Constitution. Whenever a legislation is being debated for being put ,. on the statute book, Arts. 12 and 13 must be staring into the face of that body. Consequently when the Act was enacted not only Arts. E. > 12 and 13 were sovering ov.er th~ provisions but also Art.· 33 which to some exteni carves out an exception to Arts. 12 and 13 must be present to the corporate mind of Parliament which would i~ply that Parliament by law can restrict or abrogate fundamental rights set out in part III in their application to Armed Forces. But it was said that by contemporane expositio Section 21 of the Act clearly sets out F the limits of such restriction or abrogation and no more. Section . 21- confers power on the Central Governmentto' make rules restric- ting to such extent and in such .manner as may' be necessary to ' modify the fundamental freedom conferred by Art. 19( l) (a) and (c) in their application· to Armed Forces and none other meaning G. 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 H P!irliament by law to abrogate or restrict f11ngamental rights in their

412 SUPREME COURT REPRTS [J983j J S.C.R. ' A application to Armed Forces, Parliament exercised the same power limited to what is prescribed in Sec. 21 and specified the restric- tions in rules 19, 20 and 21 and" therefore; the remaining fun\ia: .l mental rights in Part Iii are neither 'abrogated nor restricted in their t· application to the Armed Forces. Consequently it was urged that the Act prescribing the procedure of court-martial must satisfy the B requirem~nt of Art. 21.

While investigating and precisely ascertaining 'the limits of inroads or encroachments made by legislation enacted in exercise of power conferred by Art. 33, on the guaranteed fundamental rights to all citizens of this country without distinction, in respect of • c armed personnel, the 'court should be vigilant to hold the balance b~tween two conflicting public interests·; namely necessity of disci- pline 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 D civilised life.

Article 33 confers power on the Parliament to determine to what extent any of the ·rights conferred by. part III shall. in their · application to the members of the Armed Forces, be restricted or abrogated so as to ensure the proper discharge of duties and mainte- E nance of.discipline amongst them. Article 33 does not obligate that Parliament must specifically adumberate each fundamental right enshrined in' part III and to specify in the law enacted in exercise of the power conferred by Art. 33 the degree of restriction or total abrogation of each right. That would be reading_ into Article 33 a requirement which it does not enjoin. In fact, after the Constitu- F tion came into force, the power to legislate iii respect of any item must be referrable to an entry in the relevant list. Entry 2 in list I : Naval, Military and Air Force and any other Armed Forces of the Union, would enable Parliament to enact the Army Act and armed with this power the Act was enacted ,in July, 1950. It has lo be enacted by the Parliament subject to the requirements of part III of · G the Constitution read with Article 33 which itself forms part of part . III. Therefore, every provision- of the Army Act enacted by the Parliament, if in co.nflict with the fundanienial rights conferred by Part III, shall have to be read subject to Art. 33 as being enacted with a view to either restricting or abrogating other fundamental rights to the extent of inconsistency or repugnancy between !'art HI '

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

-of the Constitution and the Army Act. This is no more res integra in view of the decision· of the Constitution Bench of this Court in R~m Sarup v. Union of India & Another(') in which re.pelling. the contention that the . restriction or abrogation of -the fundamental rights in exercise of the power conferred by Art. 33 is limited to one set out in sec. 21. of the Act,,this Court observed as under.:· · B "The lea~ned Attorney:General has urged that the ·entire Act has been enacted by Parliament and if any of the · _provisions of the Act is not consistent with the provision~ of any of the articles jn Part III· of the Constitution,· it must be taken that to the e_xtent of the inconsistency c ~- } · Parliament had modified the fundamental rights under those articles in their application to _the person subject to that Act.' Any such provision in the Act is as much law as the entire Act. We agree that each and ·every provision of the Act is.a law made by Parliament and that if any such provision tends to eileci the fundamental rights-under Part III of the. Constitution, that provision does not, on that . D account, become ~oid, as it must be ta1!_en that Parliament . has thereby in the exercise of its power under Art. 33 of the Constitution made the requisite modification to affect the respective· fundamental rights.'! E > S_ection 21 merelr confers an additional power to modify· rights conferred by Art. -i9(1) (a} and (c) by Rules and such rules inay set out the limits of restriction. · But the specific provision does not derogaie from the generality of power conferred by Art. ·33. Therefore, it is not possible to accept the submission that the law prescribing procedure for· trial of offences by court martial must _F satisfy the requirement of Art. 21 because to the extent the proce- dure is prescribed by law and if it stifnds in aerogation of Art. 21, to. that extent Art. 21 in its application to the Armed -Forces is modi- fied by enactment - of the procedure . in the Army Act itself. '

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

(I) [1964] S S.C.R. 931. H_.· (2) (1962] 2 Suppl. 3 SCR 2s,

414 SUPRBMB COURT REPORTS [1983] I S.C.R. A not saved by Art. 19(2). Repelling this contention a Constitution Bench of this Court held that the Police service is an arm of the l State charged with the duty of ensuring and maintaining pub!ic order and since any breach of difil)ipline on the part of its members might result in a threat to public order, section 3 must be held, to be valid as ·having been enacted in the interest of public order within the meaning of Art. 19(2). Attempt was made to urge that as the Act in question was made by the President under Art. 356 of the Cons. ·titution it would be an Act of Parliament in exercise of the power conferred, by Art. 33 and as the police force would be one ~uch force as contemplate~ by Art. 33 charged with the maintenance of public Cl order, the provisions of the Act would be beyond the challenge of Part III of the Constitution. This contention was negatived on the ground that Art. 33 was not applicable·· because parliament had delegated the powers of State legislature to the President and, there· fore, any law enacted by the President in exercise of this power wculd not have the force of Parliamenfary ·legislation contemplated .. D by Art. 33. But this is hardly of any assistance. In Lt. Col. M. L. Kohli v. Union af India & Ors.( 1) the petitioner challenged certain provisions of the Army Act' and it was contended that Art. 33 does not cover ex-servicemen who are not serving members of the defence forces. In fact, at the hearing of the petition the contel}tion was • withdrawn and, therefore, it is noi necessary to examine this deci· E sion any further.

Mr. Tarkunde, however, contended that the observations of· the.Constitution Bench in Ram Sarup's case in respect 0f the pro- visions of the Act having been enacted by the Parliament in exercise of powers conferred by Art. 33 and that each and every provision of F the Act is a law m11de by Parliament and if any such provision tends to affect the fundamental rights under Part III of the Constitu- tion, that provision· does not, on that account become void as it must be taken that Parliament has in exercise of its power . '

under Art. 33 of the Constitution made t.he requisite modifica- tion to affect the respective fundamental rights, are· obiter. · G Proceeding along tjiis he it was submitted that the contention before the Constitution Bench was that Art. 22 of the Constitution conferred a fundamental right on a person accused of ~n offence to be defended by a lawyer of his own choice, the denial of thi.s right to H (I) AIR 1975 612,

PRITHl".AL v. UNION (Desai. J.) 41S

the accused would be violative of Art.. 22 and the. trial would be ·A vitiated. It is true that this contention was repelled, on the facts found, namely, that the p.etitioner made no request for being repre- sented at the court martial by a counsel of his own choice. Rule 96 ·_ "/ of the Rules provides that subject to the Rules, counsel shall be allowed to appear on behalf of the prosecutor and accused at general and district courts-martial if the Chief of the Army Staff B or the convening officer declares that it is expedient to allow the appearance of counsel thereat and~declaration ·may be made as regards any particular general or district court-martial held i.n a particular place etc. The question of validity of this Rule was kept open. Frankly, there is some force in the contention of Mr. Tarknnde that once hav\ng found ihat the accused in that case made c no request for being defended by a lawyer of his choice he could not be heard to complain of contravention or violation of the iight under Art. 22/and, therefore, the qu 0 ·:ion whether the whole of the Act was enacted in exercise of the power conferred by Art. 33 did not specifically arise.· However, a contention was specifically canvassed before the Constitution Bench by the learned Attorney-General that D cou.rt niay proceed on the basis that the request as claimed on behalf of the accus~d in that case was made and turned down and. yet the accused could n.ot in that case complain of contravention of Art. 22 ' of the Constitution and this contention was in terms answered. If in this context the· observation can be said· .to be obiter, it is nonethele~s entitled to respect at our hands. E ) . It was, however, contended that the question as to the validity of the Rules enacted in exercise of the power conferred by section • 191 having been kept open, this Court must examine the cqntention afresh.· It was urged that what Art. 33 protects is an Act made by y the parliament and not subordinate legislation such as the Rules and the regulaiions. Sectio11 191 confers power Otl the Central Government to make rules for the purposes of carrying into effect the provisions of the Act. Section 192 confers power on the Central Government to make regulations for all or any' of the purpose's of - the Act. other·than those specified ins .. 191. Section 193 provides G that all Rules and Regulations made under the Act shall be published in the official gazette and on. such pu bliCation shall have effect as if enacted in the Act. What character 'the rules and the regulations acquire when a deeming fiction is enacted that if enacted in accordance with the procedure prescribed they shall have effect .H as if enacted in the Act meaning thereby that they are to. be treated . as .part and parcel' of the enactment itself? In the Chief Inspector

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

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

"The true.position appears to be that the .rules and B regulations do not loose their characte~ as rules and regula- tions, even though they are to be of the same effect as if contained in the Ac.t. They continue to be rules subordi-- . nate to the Act, and though for certain purposes, including the purpose of construction, they are to be -treated as if contai.ned in the Act, their true'nature as 'subordinate rule c is not lost."

The s·ame question came up/ L:fcre a Constitutiion Bench in Kali Pada Chowdhury v. Union OJ l,. !ia,( 2) and the majority has almost accepted the same view. D , The effect of the expression 'as if enacted in this Act' has occasionally presented difficulty arising from the context in which \ t_be expression is used, If the expression were to mean th.at the . rules or regulations enactea or framed in exercise of the power to enact subordinate legislation having the same force as the provisio.ns of the statute which enables the subordinate legislation to be enacted, ., E a question is bound to arise whether, if the provisions of the statute are not open to question the suoordinate legislation would also be immune from the challenge to its validity. In Institute of Patent · Agents v. Lockwood,(') Lord Harschell was of the. ·opinion· that the expression 'as if enacted ·tn this Act' wotild.render .the subordinate legislation as completely exempt from judicial review as the statute ' F itself. However, in R. v. Minister of Health, ex-parte Yajfe,( 4 ) there was some disinclination to accept Lord Herschell's opinion at least to its fullest extent. While distinguishing· Lockwood's case a note was taken of the fact that the rules framed in exercise of the power conferred by s. IOI (3). of the Paten!s, Designs and Trade Ma~ks Acts of !883 and 1888 would be subject to control of Parliament and, G therefore; Parliament was in control·of the rules for 40 days after they were passed and could have annulled them on a motion to

(1) [1962].1 S.C.R. 9@ 20 .. H (2) [1963] 2 S.C.R. 904. ·(3) [1894] A.C. : 47. (4) [1931] 2 A.C. 494.

'.PRITHI PAL v. UNION (Desai J.) 417 A that effect, and that would permit an inference that they ha.d/same strength and validity as the /provisions of the. statute itself. Distinguishing this position in ·Yaj]e's case it was· noticed that . there was no parlil),mentary manner of dealing with the confirmation. of the scheme by the Ministry, of Health' 'and,· therefore, it cannot have the same efficacy and validity as the provisions of the statute. Subsequently, in Miller v. Bootham,(1) the conflict between the view of Lord Harsch all in Lockwood's case - and the view of Lord Dunedin in Yaffe' s case was notfoed but it ··was held to have no impact in that case because power was reserved with. the Secretary ·' of State in the later factories Act of 193?° to bring the earlier regtiia- ) tion in conformity with th.e intendment of the Act. It would, how- c ever, appear that this ancient formula often resorted to, to clothe subordinate legislation with the force of the provisfons of the statute would require further consideration. It is, however, not ·necessary to conclude-this. point because the primary contention was about the non-compliance with rules rath.er than .with their validity • ... _ Rule 40 provides for composition of. court-martial. It reads as under :

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

- (2) The members of a court-martial for the. trial of an officer shall be of a rank not lower th~n that 'or the officer unless; in the opinion of the convening officer, officers of such rank are not (having due regard to the exegencies of ihe P,Ublic service) available. Such opinion shall be re- corded in the convening order. G .• (3). in no case shall an officer below the. rank oJ . 'captain be a member of a· court-martial for the trial° of a filed officer.

The power to convene the General Court Martial is conferred on the Central Government, the Chief ·of Army Staff ·or by any officer · empowered in this behalf by warrant ·of 1the Chief of Army Staff..

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

418 SUPIUlM¥ COURT REPORTS [1983) 2 S,C.R. A The Officer empowered to convenena general. court-martial is desig- nated in the rules as 'convening officer'. In the composition of court-martial there is both a positive and negative requirement to be fulfilled. The positions requirement is that it shall be composed . of officers of different corps or departments and the negative inhibi- B tion is that in any ca'se it shall not be composed exclusively of officers of the corps or departments to which the accused belongs. Both these requirements are subject to the overriding consideration that it may be so done as far as it seems ·to the convening officer practicable to do so. In other words, one or the ~ther requirement may be given a go by if it is otherwise found not to be practicable. c Keeping aside the functional requirement of practicability of comply- ' ing with rule 40, the convening officer in ordinary circumstance should arrange the composition of the general court martial as. to include officers of different corps or departments and must avoid so composing the court-martial as to be exclilsively of officers of the corps or department to which the accused belongs. There is a D further requi!ernent ·in sub-section (2) which will be presently '1 examined. What constitutes Corps for the purposes of rule 40 is the bone of contention between the parties. The expression 'depart- ment' did not present any difficulty. The definition' of the ·expression 'department' is an inclusive definition. The expression would include any division or branch of a department. Learned Additional Soli: · E cit or-General stated that there is only one department in the Army and that is the department of Judge-Advocate. There is no other department. It,is not necessary to dilate on this point because it was not contended on behalf of the petitioners that the personnel of the court-martial belonged to the same department. F The expression 'corps' has been defined to mean any separate , body of persons subject to the Act which is prescribed as corps for the purposes of all or any of the provisions of the Act. And 'pres- ·cribed' means prescribed by rules made under the Act. Rule . 187 bears the ·marginal note: 'Corps prescribed under section J(vi)'. G Bach or the separate bodies of persons subject to the Act set out in sub-rule (I) (a) to (y) is to be. a corps for the purposes of Chapter III and s. 43(a) of the Act and Chapters If and Ill of the Act. Sub- for rule (3) provides that the P,urposes of every other provision- i.e., other than -Chapter III and s. 43(a) of the Act and Chapters II H · and III of the Rules-each of the body of persons set out· in sub- clauses (a) to (f) shall be deemed to be a corps. They are : (a) every battalion; (b) every company which does not form part of battalion;

PRITHJ PAL •• UNION (Desai, J.)' - 419

(c) every regiment of cavalry, armoured corps or artillery: (d) _every squadron· or battery which do~s not form part of a regiment of cavalry, armoured corps or artillery; (e)_ every school of instruction; training - centre; or regimental centre; and (f) every other separate - unit composed wholly or partly of persons subject to the Act. To understand the full import of t!ie expressions 'battalion', 'company', 'regiment'' 'squadron' or 'battery'. it was imperative to' understand B the hierarchy and vertical formations in the Army. National secu- . rity demands that op country would disclose its Army formations. ·But on the basis of the broad information availabfo, a chart roughly showing vertical hierarchy with horizontal equation was composed to understand the meaning of the- aforementioned expressions : - c - Supreme Command er ='President of India I I I - Chief of Army Staff = Chief of Army Staff I D I Command ,; GOC-IN-C Commanding I Officer I Army Corps Army Corps Army Corps Army Corps =Lt. Gen. I E . Division Division Division 'Qivision =Maj. Gen!: I Brigac:re--- Brigage Brigade Brigade =Brigadier. 1 Battalion Battalion Battalion Battalion =Lt. col. · (In Infrntry)_ F Regiment in Cavalry. I Company Company Company Company_ =Major • (In Infantry, Battery cir Squadron in Cavalry. G President is t-he Supreme Commander of Armed F~rces [See..) Article 53(2)]. Under him is the Chief of Army Staff. The Indian Army is divided into five commands being 'Northern, CentrAI, Western, Eastern and Southern Commands. Bach area command H has under it static formation areas, sub-area, etc. and fightin9 fo~-

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

A mation army corps : 'for example, the Western C~mmand is said to have three army corps. Corps in this sense means army formation. Speaking generally, each army corpl is composed of three or four \ divisions with an officer of the rank of Major General at its head; each division is divided into three or four · Brigades, each Brigade being commanded by a: brigadier; each Brigade is composed 0

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

To start with, the.expression 'army .~~rps' should not be 'con- fused with the expression 'corps'. Both connote a' distinct and diffe- rent unit in the army. Section 7 and Rule 189 operate in a different situati~n.· They merely specify who is the commanding officer of a D person attached to corps, department or detachment. Corps forms· a tiny small part of what is called Army Corps. The expression 'Army Corps' used in s. 8 and s. 125 with its content and juxtaposi- tion leaves no room for doubt that the expression 'Army Corps' and 'corps' have different connotation. Once this is borne in mind the E meaning of the expression 'corps', in rule 40 does not present any difficulty. ,

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

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

PRITHIPAL •• UNION (Desai, J.) 421

. reinforced by reference to rule 187(1) in which there are separate '

bodies of persons each by its very designation, duties and responsi· · bilities and functional. requirement would not be part of regular army battalion and, therefore, each ha& to be designated as a corps for the purposes of the Act and ·fhe Rules. If each battalion in theI infantry or regiment in·cavalry would be a corps for the purposes of rule 40, the selection of personnel for composing a general cour B martial would not present difficulty.- ·Tf on the other hand as conte· ded for the petitioners that the expression 'corps' is an inter-change· able substitute for the ·expression 'army corps', the difficulty of setting up a general court-matial in strict compliance with rule 40 would be insurmountable, This can be. demonstrably established if the compostion of the army as hereirtabove set out is recalled for the c ·~. . limited purpose of pointing out that com_mand is composed of army .\ corps and each army corps is led. by the officer of the rank of Lt. General. Expression 'command' may be clarified in the sense that this country is diyided into various commands such as Western Command, Northern Command, etc. Now, if variojls army corps form part of the command and if for setting _up a general court· D martial in strict compliance with rule 40 is to be insisted 'upon, per· sons from different army corps have to be selected because as far as p~acticable officers of different army corps-substituting the expres- sion for corps-for the time being will have to be selected. But the negative inhibition of rule 40 will 'present an insurmountable difficulty in that any such general court martial shall not be composed exclusi· E ) · vely. of officers of the same• corps. Translated into functional adaptability office~s under the same army corps attached to various · divisions, brigades under the various divisions, battalions under the brigades and companies under the battalions will be disqualified from • serving on the general court martialbecause they all belong to the same 'army corps'. That could not be the object u·nderlying rule 40. F Instead of vertical movement, if a downward movement in the army command is. taken into -_account to ascertain the meaning· of the . ' expression 'corps', rule 40 will become· workable and would be easy to comply with. What is positively desired 'is that for the composi· tion of a general court-martial, one must strive to secure services' of officers of different corps or departments and what must be eschewed G is its being composed exclusively of officers of corps' or' departments to which the delinquent officer belongs. If we give a restricted meaning to the expression 'corps' the rule becomes. workable. If wider meaning is given so as to Sl!bstitqte •(rroy corps'" for-'corps' .it H

422 SUPREME COURT REPORTS [1983} l S.C.ll. • A would be wholly· unworkable because officers will have to be summo- ned from another command altog~ther."' Thus, if we take 'army corps' to mean the same thing as 'corps' and if the accused belongs \ to a certain army corps all· officers belonging to various divisions under the same army corps, to .all brigades under· all the divisions of the same army corps, to all battalions under all -brigades 'or the B same army-corps and to all companies under all battalions of the -same army corps will.be disqualified because they do not belong to the different corps and are likely to be stigmatised· as officers exclusi- vely belonging to the same corps. A vertical movement starting from the bottom which is indicated .by reference to battalion and regiment in sub·rule (3) of rule 187 clearly indicates that the lowest formation c in the battalion or the regiment is corps over' and above those speci· \ fically designated as corps under rule 187(1). Therefore, it clearly transpires that the expression 'corps' in rule 40 must be given the 0

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. D , Thi.s interpretation accords with. the intendment underlying rule 40. Rule 40 takes note of a possible official ·bias or personal bias on account of close association. If ofljcers belonging to the same corps have to try brother officer, either there might be possible E indulgence towards the brother officer or· familiarity in working together mAy have bred such contempt that bias is inevitable. To '- decry any such possibility and to put personnel of general court• martial beyond reproach, to make it unbiased and objective, compo· sition of court-martial was to be so devised by statutory .rules as to make it an ideal body having all the trappings of a court. Two F fundamental principles in this .behalf are that the judge must be · unbiased and objective free fro~ personal likes and dislikes or pre· judice cons.equent upon association of close. familiarity. People drawn from 'different corps' and avoidiirg officers of the same corps composing the general court-martial would emure an objective, un· G biased body. If this is the underlying intendmeot, it is achieved by giving the expression 'corps' a restricted meaning and not a wide · mean.ing to make it synonymous wit.h 'Army Corps' at the top, so that it may almost become impossible to search only officers belong-· ing to different army- corps and avoid meaning the court-martial exclusively by officers belonging to same corps because a large body of officers would spill over the line, lf Qn the other han4 as js clearly

' PRITHIPAL v. 1JNION (Desai, J.) 423 fodicated by sub·rule (3) of'rule 187 a battalion or a regiment is trea- ted as a corps then it is easy to provide composition of court-martial in strfot compliance with rule 40. Under a brigade there. are number of battalions. Each battalions would be a corps; One can easily draw officers from different battalions as they would be belonging to different corps and one can avoid what is negatively inhibited, viz., a general court-martial being composed exclusively of officers ·of the B co.rps to which the accused belongs. If the accused pelongs to· one battalion, even under the same brigade there are number of batta- lions,..and each battalion being a corps, officers from battalions other than the battalion to which the accused belongs can be convenieptly summ'oned because each battalion is under the. same brigadier. In this manner officers belonging to different corps can be summoned c and one can easily av·oid a gene'ral court martial composed exclusive- ly of officers of the corps to which the accused belongs .. It would be unwise to reject this construction on tl;ie ground that it does not · take note of and try to avoid command influence. Command influ- . '.ence is too vag11e a concept to call in aid for.construction of a rule. D Viewed from e'ither angle the expression 'corps' in rule 40 is not used in the same sense in which the expression 'army corps' is used but it is us.ed in the sense in which it is defined and elaborated in rule 187.

It was contended that the interpretation of rule-40 must be . E informed by the underlying intendmenMhat officers composing the co'urt-martial must be independent of command influence or influence . of superior offic~r~ like the convening officer. This is 'unquestio~­ ably correct, save and except saying what meaning one must assign· to a loose expression like 'command influence'. If by' command one F at the highest level such as commander-in-charge of area is the one li11ely to permeate his influence down to the lowest it would be· impossible to set up a court:martial of officers belonging to entirely a different command. The expressions Iike ihe ,'command influence' and thC 'influence of superior _officers' have to be und.erstood in the context of the vertical. hierarchy. in the composition of army. Once G it transpires that the expression 'corps' . in rule 40 has the same 'meaning as has been set out in rule 187 and, therefore, a bat.talion would be'a corps and an unattached company can be a corps by itself, it becomes easy and practicable to set. up a court martial in. which officers outside the corps would be available a~d such officers H- outside the same corps to which an accused belong; conl\I cei'tainly

4~4 SUPREME COURT RilPORtS [1981J I s.c.ll. A ·be said to be free from command influe~ce. But to urge that even if the officers of another battalion but forming part of the same brigade are selected the Brigadier being the thp officer under whom various battalions must be operating, the command influence will permeate down. the same difficulty would arise as hereinbefore explicitly set out in setting up a court-martial. The intendment D underlying rule 40 is fully subserved by the interpretation, which the 'language employed indicates, put on the expression 'corps' in rule 40. ·

. Undofibtely rule 40 by its very language is not mandatory. c Rule on its own force insists on compliance with its requirements as ~· far as may be practicable. Even with this leeway, a strict compliance i with the requirements of Rule 40 must be insisted upon and the '· departu~e on the ground of practicability will, if challenged, have to be proved within the broad parameters of functional adjustibility of the Army requirements. If the interpretation convassed on behalf D of tbe petitioner~ is accepted every time the soul of rute 40 will be sacrificed at the alte.r of practicability while the interpretation which we put on the expression 'corps' in rule 40 would help in avoiding shelter under the practicability clause and that in a very large number of cases strict compliance with rule 40 1 can be insisted upon. If a court martial is set up not in consonance with rule 40 E and the defence of practicability is advanced the same can be· examined with precision. Therefore, the expression 'corps' in rule 40·is no~ synonymous with the expression 'ar~y corps' and it must' receive a restricted construction with narrow connoiation as explained in rul_e 187 (3).

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

425 • P!UmiPAL v. UNION (J>esal, J.)

Having formulated. the necessary test for examining the validity of the compqsition of general court martial it is necessary ~o turn to · the facts of each· case in this behealf. Lt. Col. Prithi Pal Singh ,y Bedi (Writ Petition No. 4903/81) was hol~ing the rank of Lieutenant Colonel and belonged to the 226 Regiment of 43 Artillery Brigade of 9th Infantry Division of the Indian Army at the rdevant time. The general CO\Irt-martial set up to try him was composed of five 8 officers. · They are: Brigadier Kalk at, an offic.er in rank higher. than the petitioner, Lt. Col. Khullar, Lt. Co.I. Yadav, Lt. Col. Nathu Singh and Lt. Col. Kohli, all of co-ordinate, same or of equal rank, and even though they all belong to 9th Infantry · Division, they are drawn from different brigades and regiments and that becomes distinctly clear from the attachment of each set out c in the order convening the general· court-martial. To be ' precise, Lt. Col. Khullar was Officer Commanding· 168 Field Regiment, Lt. Col. Ya<!av Bhopal Singh, S.M. Dogra was officer commanding 10 Dogra, Lt. Col. Nathu Singh, Punjab was officer commanding 5th Rajputana Rifles. It would appear at a glance that even though all th,e five officers belong to the 9th Division, none of them D belongs to the same corps to which the petitioner belonged and none was lower in rank than the rank held by the petitioner. Therefore, the requirement of rule,40 is strictly complied with and there is no contravention in letter and spirit thereof. E. In the case of Capt. Dharam Pal Kukrety (Writ Petition No. 1513/79), the general court martial is composed of seven officers.. Petitioner Kukrety was holding the rank of- a Captain. Of the seven officers composing the court martial the senior-most • ls a Brigadier the next in rank is hoidi!'g the rank of Lt. Col. and · the remaining ·five are of the rank of Major. Their designations F and attachments show that none of them is· even equal in rank with the petitioner; each is holding a rank· higher than the petition~r . .Petitioner at the relevant time belonged to 25 lnfanrtry Division which is a division of the 16th Corps of the Indian Army. And all ·.the members composing the court-martial belonged to the 25th G • Infantry Division which itself is a division of the 15th Corps of the Indian Army. But the expression 'corps' qualifying '16th' is army corps and not corps as understood in rule 40. None of. the officers composing the general court-martial in the case belongs to the corps • to which the petitioner belonged. Theri;fore, there is no violation of rule 40. · ....

426 SUPREME COURT REPORTS (1983) I s.c.k. . A Thepetitioner Capt. Chander Kµmar Chopra (Writ Petition No. 5930/80), has alleged in his petition that he belongs to the 33 corps and that each such cprps is divided into divisions. This wi II clearly show that by saying that he belongs to 33 corps he means.to suggest that he belongs to 33 Army Corps. At the relevant time the petitfoner wa1 holding the rank of a Captain and was B · attached to 877 At: . BN. ASC c/o 99 A.P.O. There is not one w_ord in the petition that any of the officers composing the -general - court-martial set up to try him, belongs to his corps in the sense in which.the:word has been interpreted by us. Nor has he alleged that any one lower in rank than a Captain has been nominated as a member of the general court-martial set up to try him. Therefore, a even in this case there is nothing to show .that rule 40 has been violated.

It would be advantageous at this utage ·to call attention to the provision contained in section 130 of the Act and rules 41 to 44 of tbe Rules. When ·either a general, district ot summary court martial • D is assembled and the offender who is to be tried is brought before it, it is obligatory to read out the names of the presiding officer and the members composing the courLmartial . . to the accused and be is asked whether he ·objects to his being tried by any of the officers sitting on the court. Sub-section (2) of section 130 requires that if the. accused objects to any such officer, his objectio~ and the reply there- _ E to of the officer objected to shall be heard recorded and- the remain- ing officers of the court s.hall in the absence of the challenged officer decide the. objection. The provision contained in section 130 is elaborated in rules 41 to 44. Rule 41 requires that as soon as ·ihe court assembles the order convening the court shall be laid before it together with a charge sheet and summary of evidence· as also the F ranks, names and corps of the officers appointed to serve on the , court. A duty is cast on the court to first. ascertain whether it has ,/ been convened according to the provisions of the Act and the.rules. In order to find out whether rule 40 has 'been complied with or not, the corps to which each officer composing the court martial is G Attached is to be set eut and which will reveal at a glance whether he is qualified to sit on the court. At this stage the accused does not enter into the picture. The duty is casi on the court itself to ascer- tain whether its constitution is in accordance with the Act and the rules. Rule 42 cast s a duty on the court to satisfy itself that the ... H person who is to be tried is amenable to the provisions oft he Army

I Act and th~t ~ach charg~ framed against him discloses an offence

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

under the Act and is framed is accordance with the rules. Then· A . comes rule 43. After the court has satisfied itself that rules 41 and 42 have been complied with the accused is to be brought before the .> Court. · Rule 44 provides that on the accused being brought before · tbe court, the order convening the court and the names of the presid- ing officer and the members of .th.e court shall then·b_e read over to • the accused and he sliall be asked as required by section 130 whether B· he has any objection . to being tried by any iofficer serving in the Court. Whenever an objection is taken.it has to be recorded, Ip order to ensure that any one objected to does not participate in dis- posing of the objection, clause (a) of the proviso·to.rule 44 directs that the accused shall state the names of- all officers constituting·the c " \ ) - . court in respect of whom he has any objectimi before any objection is disposed of. This is a mandatory requirement. because the officer objected to cannot . participate in the decision disposing of the objection. It is true that if: the ·court is not .constituted in accor- dance with the Act and the Rules,. rule. 44 would hardly assist because as in this .case if the contention is that rule' 40 was D· violated in constituting the court-martial and that each officer was disqualified from being a member of the court-martial, there is none left to dispose of the .contention. In such a situation, rule 44 may not be helpful bec~use once such an objectio~ is taken no one shall be competent to decide the objecti.;"n. The provision conferring a righi on the accused to object to a member of the E .• court-martial ·sitting as a mem'ber and participating in the trial ensures thai a charge of bias can be made and investigated against · .. individua.1 members composing. the court-mart.ial. This is pre- eminently a rational provision which goes a long way to ensure a fair trial. That stage Is still to come and therefore we refrain from pronouncing on any allegation. of bias against individual member F· of the court martial. ' .

Similarly a very faint attempt . made by Mr. Sangbi inviting u~ · to examine the merits of the charge against Lt. Colqnel Bedi should · 1. G not lure us into doing so. That is our function at any rate at this stage :and we steer clear the same.

Having examined the general contention as to the legality and ~alidity of general court martial set up .in each of these cases,· H we may now turn to certain specific contentions raised 'in each petition.

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

A In re. W.P. 4903/81 i

· Mr. Sanghi, learned counsel.for the jletitioner urged that· pre- condition to the trial by a general court martial having not been satisfied, the order convening the general court martial to try the petitioner is vitiated. Reliance was placed on rules 22, 23, 24 and 8 25. They may be 'extracted :

"22. Hearing of Charge :

(I} Every charge against a person subject to the Act other than an.officer, shall be heard in the presence of the c accused. The accused shall have full liberty to cross· examine any·witness 11gainst him, and to call any wit- ~- I I nesses and make any statement in his defence. \

(2) The commanding officer shall dismiss a charge brought

D before him if jn bis opinion, the evidence does not show • that an offence under the Act has been committed, and may do so if, in his discretion~ he is satisfied that the charge ought not to be proceeded. with.

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

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

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

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

(d) if the accused is below the rank of warrant officer, order bis trial by a su'mmary court-martial. H Provided that the commanding officer shall not order 'trial by a ·summary court-martial without a reference to the officer empowered to convene a district court-martial or on actiye serviee a summary

l'R!TlttPAL •. UNION (Desai, J.) 4~1}

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

(a) the offence is one which be can try by a summary court martial without any reference to that officer; or ' (bl he considers that there is grave reason . for immediaie action and such reference cannot be made without . detriment to discipline.

23Copy pinpoint23. Procedure for taking down . . the summary of evidence -

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

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

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

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

A (4) The evidence of· the witnesses and the statement (if any) of the accused shall be recorded in the English language. If the witness or accused as the case mav . be, does not understand the English language, th.e · evidence or statement, as recorded shall be interpreted ·to him in a language which he understands. B (5) If a person cannot be compelled to attend as a witness, or if, ow.ing. to the exigencies of service or any other grounds. (including the expense and loss of time involved), the attendance of any witness cannot in the opinion of the officer taking the summary ·(to he c certified by him in writing), be readily procured,,· a written statement of bis evidence purporting to be signed by him may be read to the accused and inclu· ded in the. summary of evidence.

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

24Copy pinpoint24. Remand of accused : (l) The evidence and statement (if any) taken down in writing in pursuance of rule 23 E (hereinafter referred to as tlie "summary oi' evidence"), ·shall be considered · by the commanding officer, who thereupon shall either-_ .

(a) remand the accused for trial by a court-martial; or F (b) refer the case to the proper superior military authority; or