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Tham Bahadur Gaurang and ors. Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1984)1GLR429
AppellantTham Bahadur Gaurang and ors.
RespondentUnion of India (Uoi) and ors.
Cases ReferredR. Viswan and Ors. v. Union of India and Ors.
Excerpt:
- - this clearly showed that there was no communication gap between the accused and the advocates who were appointed. having gone through the bulky record we are satisfied that the provisions of the army act and the rules are properly followed. 11. coming to section 125 of the army act, the order is clearly passed having recourse to that section by it. section 125 of the army act is clearly protected by article 33 of the constitution of india. now, therefore, he clearly knows that for what he is charged, for what he is being prosecuted, for what he is punished. they are not the persons who are expected to give a reasoned order like judges. they are persons well conversant with the facts and well conversant with what they have to do under the act and to maintain discipline and see that.....s.l. talati, j.1. the petitioners are the military personnel and they are undergoing imprisonment at sabarmati central prison, ahmedabad and they have now filed this petition challenging their trial and the conviction by the court of martial and their prayers are for the issuance of a writ of habeas corpus or any other appropriate writ, order or direction and further declaring that sections 124 and 125 of the army act, 1950 are as unconstitutional and violative of articles 21 and 22 of the constitution of india and further to declare rule 61 of the army rules as unconstitutional and ultra tires articles 21 and 22 of the constitution of india.2. in the title to the petition begins however by mentioning articles 14, 20 and 21 of the constitution of india and it is stated that the petition.....
Judgment:

S.L. Talati, J.

1. The petitioners are the military personnel and they are undergoing imprisonment at Sabarmati Central Prison, Ahmedabad and they have now filed this petition challenging their trial and the conviction by the Court of Martial and their prayers are for the issuance of a writ of Habeas Corpus or any other appropriate writ, order or direction and further declaring that Sections 124 and 125 of the Army Act, 1950 are as unconstitutional and violative of Articles 21 and 22 of the Constitution of India and further to declare Rule 61 of the Army Rules as unconstitutional and ultra tires Articles 21 and 22 of the Constitution of India.

2. In the title to the petition begins however by mentioning Articles 14, 20 and 21 of the Constitution of India and it is stated that the petition is filed under Article 226 of the Constitution of India.

3. The facts as they appear are that on 8/9-10-1979 in Leh (Ladakh) Kashmir an accident occurred as a result an inquiry was started against 12 persons and ultimately charge-sheet Annexure 'A' was submitted against 12 persons on 16-8-80. It appears that they were charged that after having heard a seditious speech by JC50727 Sub-Bhim Bahadur Rana, officiating Sub-Major of the Unit, in a mutinous spirit supported the actions of officiating, Sub-Major by shouting certain slogans which are mentioned in the charge. The petitioners moved about in a riotous manner carrying bamboo tent poles, iron pods and pieces of angle iron etc. and flashing torches in and near about the Unit area and ransacked the officers mess and quarters. They also used criminal force against the superior officer Captain S.K. Bahi of their Unit and gave him stick and fist blows and kicked him. That was the charge-sheet filed against them.

4. Thereafter an order was passed on 14-10-1980 that the persons would be tried by General Court Martial. The result of the trial was the conviction against 10 persons and 2 persons were acquitted. That order was passed on 19-12-1980 which was confirmed on 24-1-1981. All persons were dismissed from service and they were sentenced to suffer rigorous imprisonment for various terms. Thereafter they have filed this petition in this Court on 7-2-1983.

5. The learned Advocate Shri Budhbhatti who appeared on behalf of the petitioners tried to urge several points in regard to the trial. He tried to make out a case that the trial was not fair, the statements of witnesses were not supplied, certain witnesses were examined whose statements were never recorded, proper opportunity to defend was not given, proper questions were not put to the accused persons, they were not properly heard and they were not asked as to whether they want to lead any defence evidence and that ultimately when the judgment was pronounced it was not the judgment with any findings or reasonings and that it was all oral judgment which was reduced into writing stating guilty, not guilty etc., and it was suggested that the rules of natural justice and fair-play were not observed.

6. A detailed affidavit-in-reply is filed by the Lt. Col. K.K. Kuncheria, Commanding Officer, 4/3, Gorkha Rifles, who stated in his affidavit that all opportunities were afforded to the petitioners, that 3 Advocates were engaged to defend the petitioners, that every facility was accorded to them, that there was lengthy cross-examination. All the persons who were appointed as Court-Martials nothing could be stated against any of them and that the accused were asked as to whether they had any objection against any of them and thereafter the witnesses were examined in their presence who were cross-examined at great length. The statements of accused were recorded and each circumstance was brought to the notice of the accused and everything which was required to be done in the trial according to the Army Act and the Army Rules, was properly done. It was submitted that the Army Rules do not require that any long judgment or findings are required to be recorded and each Member of the General Court Martial gives his opinion orally which is recorded and thereafter the Presiding Officer passes the final order and during the whole trial the General Court Martial is assisted by the Judge-advocate. In order to just verify this aspect, we have gone through the long proceedings which were given to us by the learned Advocate for the petitioners as all the relevant copies were with him. We could see that 4 Advocates of the Gujarat High Court were appointed to defend them and when we went through the proceedings we found that each witness was cross-examined at great length. At the beginning of the trial each accused present was asked as to whether he had any objection against any of the members who were to sit as General-Court-Martial and the answer was given in the negative which was recorded. Not only that an interpreter was appointed. For the purpose of appointing interpreter also each accused was asked whether there was any objection in appointment of a particular gentleman as an interpreter. That question and answer are also recorded. Even in regard to the person who was to take notes such a question was put. Several questions were put to each of the accused persons after the witnesses were examined. This clearly showed that there was no communication gap between the accused and the Advocates who were appointed. Ultimately the accused filed written statements which were drafted by the Advocates. All the arguments were heard and it appears that even thereafter the matter was adjourned for the purpose of deciding as to what was required to be done and thereafter in accordance with the Army Rules each member of the General Court-Martial gave his opinion orally, the judgment was given and thereafter the Presiding Officer of the General Court-Martial gave his final verdict and throughout all these proceedings there was an able assistance from a Judge-advocate who guided the General Court-Martial in accordance with Section 164 of the Army Act. The sentence was required to be confirmed which also came to be confirmed by the Major General, General Officer Commanding, II Infantry Division. Further review is provided by Section 164(2) of the Army Act. That provision is not availed of by the petitioners as they thought perhaps that the verdict may not be different and that is how they chose to file this petition.

7. The real question which is required to be considered is whether this petition in the above circumstances is maintainable. The learned Advocate Shri Budhbhatti for the petitioners submitted that the petition is under Article 226 of the Constitution of India and also under Article 227 of the Constitution of India. In fact when the trial of a Court and ultimately the result of the decision of the Court is challenged the petition would be under Article 227 of the Constitution of India. But Article 227(4) of the Constitution of India itself is as under:

227. (4) Nothing in this Article shall be deemed to confer on a High Court powers of superintendence over any Court or Tribunal constituted by or under any law relating to the Armed Forces.

In this view of the situation it was clear to the learned Advocate that resort to Article 227 of the Constitution could not be taken and, therefore, it was chosen to submit that the petition in fact should be considered as a petition under Article 226 of the Constitution of India and according to the learned Advocate for the petitioners it was filed under Article 226 of the Constitution of India.

8. Now as we have stated earlier to begin with it is slated that there is infringement of the rights conferred by Articles 14, 20 &21 of the Constitution of India.

Articles 14, 20 & 21 read as under:

14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

20.(1) No person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offence more than once.

(3) No person accused of any offence shall be compelled to be a witness against himself.

21. No person shall be deprived of his life or personal liberty except according to procedure established by law.

Now, so far as Article 22 of the Constitution of India is concerned it is mentioned in the prayer clause. But when it was argued it was submitted that as the petitioners are not detained in custody in fact Article 22 does not apply and the grievance is that there is infringement of the rights conferred by Articles 14, 20 & 21 of the Constitution of India which are the Articles under which the rights of the petitioners are violated and, therefore, according to the learned Advocate Shri Budhbhatti the petition under Article 226 of the Constitution of India has been filed.

9. Now here what is required to be stated is that the petitioners are serving as military personnel and now, therefore, they are governed by the Army Act, 1950 and they will be governed by the rules framed under that Act. Now, therefore, all persons who are serving in the army would be governed by that Act and the rules framed thereunder. The question, therefore, is whether they are not granted protection of law meaning thereby the Army Act and the Rules or not. Having gone through the bulky record we are satisfied that the provisions of the Army Act and the Rules are properly followed. Now so far as Article 20 is concerned, Clauses (2) & (3) do not apply and they are not pressed into service. Now they are charged for committing the offences under Sections 37(b) & 40(a) of the Army Act, 1950. Section 37 reads as under:

37. Mutiny - Any person subject to this Act who commits any of the following offences, that is to say-

(a) begins, incites, causes, or conspires, with any other persons to cause any mutiny in the military, naval or air forces of India or any forces co-operating therewith;

or

(b) joins in any such mutiny; or

(c) being present at any such mutiny, does not use his utmost endeavours to suppress the same; or

(d) knowing or having reason to believe in the existence of any such mutiny, or of any intention to mutiny or of any such conspiracy, does not without (tela). gave information thereof to his commanding or other superior officer; or

(e) endeavours to seduce any person in the military, naval or air forces of India from his July or allegiance to the Union;

shall, on conviction by Court-martial, be liable to suffer death or such less punishment as is in this Act mentioned.

Now, therefore, the punishment is not more than provided by Section 37. Whether on the evidence led before the Court-martial the evidence was sufficient to prove the charge that 10 persons joined in that mutiny, it was for that Court to decide. It is the pure question of appreciating of the evidence one way or the other.

10. Second Section 40(a) which reads as under:

Striking or threatening superior officers. - Any person subject to this Act who commits any of the following offences, that is to say.

(a) uses criminal force to or assaults his superior officer, or

xxx xxx xxx xxx

xxx xxx xxx xxx

shall, on conviction by court-martial if such officer is at the time in the execution of his office or, if the offence is committed on active service, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned, and in the other cases, be liable to suffer imprisonment for a term which may extend to ten years or such less punishment as is in this Act mentioned:

Provided that in the case of an offence specified in Clause (c), the imprisonment shall not exceed five years.

Here we are concerned with Clause (a) and the, punishment provided is upto fourteen years and in some cases falling under Clause (a) the punishment may extend to a term of ten years. Here no petitioner is awarded any punishment which is more than ten years. Now even if Section 37(b) did riot apply, under Section 40 for using criminal force against superior officer ten years' punishment could have been awarded. Whether these ten persons used criminal force and assaulted the superior officer or not is again the question of appreciating the evidence and after having examined several witnesses who were cross-examined at length if the Court-martial finds that the offence was proved, it cannot be suggested for a moment that any right under Article 20 is at all infringed. Article 21 only prescribes that if a person is to be deprived of his life or of personal liberty it must be done in accordance with the procedure established by law. The procedure established by law is the Army Rules and the Act made thereunder. Now, therefore, reading all Articles practically no case is made out and, therefore, it was thought that what is required to be challenged is the Army Act itself and the challenge is that Sections 124 & 125 of the Army Act are unconstitutional and so also Rule-61. Now Section 124 of the Army Act, 1950 reads as under:

124. Place of trial - Any person subject to this Act who commits any offence against it may be tried and punished for such offence in any place whatever.

Section 125 reads as under:

125. Choice between criminal Court and Court-martial: When a criminal Court and a Court-martial have each jurisdiction in respect of an offence it shall be in the discretion of the officer commanding the army, army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which Court the proceedings shall be instituted, and if that officer decides that they should be instituted before a Court-martial to direct that the accused person shall be detained in military custody.

Now the grievance made is that the offence was committed in Kashmir and the petitioners were tried in Dhrangadhra in Gujarat State, a place which is at a long distance. It is true that the distance is long but the real question which is required to be considered is whether that has in any way prejudiced the accused or has it resulted in miscarriage of justice. What happened was that the entire Unit 4/3 Gurkha Rifles had moved from the formation of Ladakh to the formation at Ahmedabad in its regular and due course. Now, therefore, all the witnesses, all the accused and all persons concerned with this inquiry and trial who were at the relevant time at Ladakh were at the relevant time in formation at Dhrangadhra. Now, therefore, if the trial is held at Dhrangadhra it would be in their interest and, therefore, the power which was given under Section 124 of the Army Act was exercised in the interest of the accused and it is not their case that they named any individual from Ladakh whom they wanted to examine as a defence witness and to Court-martial did not grant that permission. On the contrary no such prayer was ever made and no such plea regarding jurisdiction was ever raised during the trial. It is common knowledge that in every enactment the jurisdiction is to be provided and it is not necessary that in every enactment which is punishable in accordance with law the jurisdiction must be in accordance with the Criminal Procedure Code. In several cases the accused are required to be tried at the place where the offence is committed or at the place where they are found. Such legislations are never declared invalid. Even under the Indian Penal Code there are several offences which are required to be tried at the place where the offence is committed or at the place where either the accused is found or where the stolen property is found or where kidnapped or abducted person is found. Further any irregularity in jurisdiction is not a material irregularity and is never considered to have been vitiating the trial and the Criminal Procedure Code also provides that no conviction shall be set aside on the mere ground that the accused was tried at the place where there was no jurisdiction. Now, therefore, even if Section 124 of the Army Act was not there perhaps it was fair for the army personnel to have tried the accused at Dhrangadhra because all witnesses and all available persons in regard to the incident in question were only available at Dhrangadhra. Therefore, it was a fair trial. It was never objected to and it cannot be suggested for a moment as to how Section 124 is ultra vires and it violates any of the fundamental rights guaranteed by Articles 14, 20 or 21 of the Constitution of India.

11. Coming to Section 125 of the Army Act, the order is clearly passed having recourse to that Section by It. Col. A.A.G. for G.O.C. II Inf. on 14-16-1980 and it was to be tried by General Court-martial. That order was also never objected to. Several officers were chosen for that purpose. Each accused was asked as to whether each one of them had any objection in regard to any one of the officers who are chosen as General Court-martial. They had no objection whatsoever. However the grievance is that such an order cannot be passed and the order which is passed under Section 125 is illegal and not only that but section itself is ultra vires. To that the only answer which we want to give is that we do not find that there is anything wrong in that section and in the case of Ram Sarup v. Union of India and Anr. reported in : 1965CriLJ236 this position was considered. The learned Judge observed as under:

Provisions of Section 125 of the Act are not discriminatory and do not infringe the provisions of Article 14 of the Constitution.

The provisions apply to all those persons who are subject to the Act and those persons form a distinct class.

It is further observed as under:

It is true that Section 125 itself does not contain anything which can be said to be a guide for the exercise of the discretion of the military officers concerned in deciding as to which Court should try a particular accused. But there is sufficient material in the Act which is to be a guide for exercising the discretion and it is expected that the discretion is exercised in accordance with that.

There could be a variety of circumstances which may influence the decision as to whether the offender be tried by a Court-Martial or by an ordinary Criminal Court, and therefore it becomes inevitable that the discretion to make the choice as to which Court should try the accused be left to responsible military officers under whom the accused be serving. Those officers are to be guided by considerations of the exigencies of the service, maintenance of discipline in the army, speedier trial, the nature of the offence and the person against whom the offence is committed.

Now this is so because of Article 33 of the Constitution of India which runs as under:

33. Parliament may by law determine to what extent any of the rights conferred by this Part shall, in their application to the members of the Armed Forces or the Forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

This Article gives ample power to enact the provisions such as the one which we find in Section 125 of the Act. Section 125 of the Army Act is clearly protected by Article 33 of the Constitution of India. The effect of Article 33 is also considered in this very ruling and the Court observed as under:

Each and every provision of the Act is a law made by Parliament and that if any such provision tends to affect the fundamental right under Part III of the Constitution, that provision does not, on that account, become void, as it must be taken that Parliament has thereby in the exercise of its power under Article 33 of the Constitution made the requisite modification to affect the respective fundamental right.

12. Certain other rulings are also required to be referred to.

13. One is the case of S.P.N. Sharma. v. Union of India and Anr. reported in A.I.R. 1968 Delhi at page 156.

Constitution of India, Articles 226 and 227- Habas corpus-Principles applicable to persons tried and convicted by Court-Martial - Writ is not available to a person properly detained by Court-Martial.

The observations are contained in paragraphs 6, 7 and 13 and they are as under:

Article 227, which confers the powers of superintendence over all Courts by the High Court, expressly excludes from the operation of this Article, Courts, and Tribunals constituted by or under any law relating to the Armed Forces. Unless the order of detention could be shown non-est the High Court, cannot interfere with the detention. The High Court, in habeas corpus proceedings, is not entitled to go into the alleged irregularities in procedure adopted by a Court-Martial when trying a person brought before it in accordance with law to stand trial on charges within its competence and jurisdiction. Broadly speaking the remedy of habeas corpus is not available to one who is properly detained under military arrest or is serving out a legal sentence of a Court-Martial except that the jurisdiction of the Court-Martial concerned may be enquired into and the prisoner set at liberty if he was not amenable to such jurisdiction. If the person concerned is a prisoner in detention in execution of a sentence imposed by a properly constituted Court-Martial, which sentence is prima facie legal, he will not be entitled to a writ of habeas corpus. The principle that a writ of habeas corpus is not grantable in general when the party is convicted in due course of law is attracted with greater strictness to a person convicted by a duly constituted Court-Martial, the finding and the sentence of which have, in due course, been confirmed by a competent authority. A habeas corpus proceeding is not admissible so as to enable a Civil Court to exercise a supervisory control over or review procedural errors generally in the proceedings of the Court-Martial. The single enquiry open in habeas corpus proceedings to secure release from imprisonment ordered by a Court-Martial is as to its jurisdiction in regard to the person, the offence and the sentence.

Now that, therefore, if a Civilian who has not joined the armed forces, is sentenced by a Court-Martial, the question would have been entirely different. Here admittedly 10 petitioners are the members of the armed forces, they were at that particular point of time serving such and on active duty. They were tried for specific charges and the offences. They were duly convicted and their sentences were confirmed. Now that, therefore, when the military personnel under the Army Act and the procedure prescribed are duly convicted and sentenced there cannot be a question of any habeas corpus because they are not illegally detained without trial. They are detained because they are convicted and sentenced by a properly constituted court under the law having jurisdiction to try the offence.

14. There is also a challenge to Rule 61 of the Army Rules. Rule 61 reads as under:

61. Consideration of finding.- (1) The Court shall deliberate on its finding in closed Court in the presence of the Judge-advocate.

(2) The opinion of each member of the Court as to the finding shall be given by word of mouth on each charge separately.

Now this rule does not provide for giving any reasons. The learned Advocate Shri Budhbhatti submitted that this rule is ultra vires. He submitted that unless the reasons are known the person concerned does not know as to what weighed with the authorities to convict him. Now these rules are framed under the Army Act which is constitutionally legal. That may not be a complete answer because even if the rules are framed under the Act the rule could still be good or bad. I he answer given by the Supreme Court in the case of Som Dan Datta v. Union of India and Ors. reported in : 1969CriLJ663 is as under:

There is no express obligation imposed by Section 164 or by Section 165 of the Army Act on the confirming authority or upon the Central Government to give reasons in support of its decision to confirm the proceedings of the Court-Martial.

Apart from any requirement imposed by the statute or statutory rule either expressly or by necessary implication, it cannot be said that there is any general principle or any rule of natural justice that a statutory Tribunal should always and in every case give reasons in support of its decision. Such orders cannot, therefore, be held to be illegal for not giving any reasons for confirming the orders of the Court-Martial.

15. Here again one more thing is required to be stated. Section 193 of the Army Act, 1950 provides as under:

193. All rules and regulations made under this Act shall be published in the Official Gazette and on such publication, shall have effect as if enacted in this Act.

So the rules do not remain the rules under the Act but they become part of the Act and now, therefore, in Sections 164, 165, 193 are read along with the rules the ruling referred to above A.I.R. 1968 Supreme Court supra would be a clear answer and that answer is that there is no rule of natural justice which makes it obligatory that for every decision rendered the reasons are required to be stated. The reasons are obvious. The charge-sheet is already there. All the witnesses are examined in presence of the petitioners. They are fully cross-examined. Each accused - person is questioned in regard to every circumstance against him. Now, therefore, he clearly knows that for what he is charged, for what he is being prosecuted, for what he is punished. When 4 or 5 persons sit assisted by a Judge-Advocate they are more or less working as if they are working as Jury. They are not the persons who are expected to give a reasoned order like Judges. They are persons well conversant with the facts and well conversant with what they have to do under the Act and to maintain discipline and see that the duties are performed properly by the army personnel and in discharge of their duty if they give opinion after seeing the demeanour of the witnesses, after full trial where witnesses are examined in their presence at the hearing and after hearing the arguments advanced by the Advocates, who represented the case fully, if they are convinced one way or the other that opinion which is formed after such hearing cannot become vitiated by the mere fact that die reasons are not given. Unless it is shown that the person was biased or prejudiced from the beginning in that case the accused would have chosen to object to a particular individual when each one of them was questioned. It is not the case even today that any of the officers had any prejudice or grudge or bias against these particular petitioners. Now in absence of any bias, grudge or prejudice if the officers act fairly after hearing fully everything which goes on before them and after getting the assistance from the Judge - Advocate they give an opinion it cannot be suggested that the rule which does not require them to give opinion is ultra vires or that though the rule requires that reasons are not to be stated they should have given reasons. That can never be an argument which can be accepted.

16. Two more rulings are required to be referred to. One is the case of Lt. Col. Prithi Pal Singh Bedi v. Union of India and Ors. reported in : 1983CriLJ647 . The observations made in that case are clear to show that the constitutional mandate to the Parliament was that the Parliament had power to enact any law by which the fundamental rights in its application to the Armed Forces could be modified. The relevant portion in paragraph 15 of that judgment is important which runs as under:

Section 21 of the Army Act merely confers additional power to modify rights conferred by Articles 19(1)(a) and (c) by Rules and such rules may set out the limits of restriction. But the specific provision does not derogate from the generality of power conferred by Article 33. Therefore, the law prescribing procedure for trial of offences by Court-martial need not satisfy the requirement of Article 21 because to the extent the procedure is prescribed by law and if it stands in derogation of Article 21, to that extent Article 21 in its application to the Armed Forces is modified by enactment of the procedure in the Army Act itself.

Now, therefore, the argument that the procedure prescribed by Sections 124 and 125 of the Army Act and Rule 61 of the Army Rules is unconstitutional because it violates Article 21 does not remain because Article 33 provides that the Parliament by law can by an enactment modify the scope of Article 21 and if that modification stands in derogation of Article 21 to that extent Article 21 in its application to the Armed Forces is modified by enactment of the procedure in the Army Act itself. It is further observed as under:

Article 33 confers power on the Parliament to determine to what extent any of the rights conferred by Part III shall, in their application to the members of the Armed Forces, be restricted or abrogated so as to ensure the proper discharge of duties and maintenance of discipline amongst them. Article 33 does not obligate that Parliament must specifically adumbrate each fundamental right enshrined in Part III and to specify in the law enacted in exercise of the power conferred by Article 33 the degree of restriction or total abrogation of each right. That would be reading into Article 33 a requirement which it does not enjoin. In fact, after the Constitution came into force, the power to legislate in respect of any item must be referable 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 to be enacted by the Parliament subject to the requirements of Part III of the Constitution read with Article 33 which itself forms part of Part III. Therefore, every provision of the Army Act enacted by the Parliament, if in conflict with the fundamental rights conferred by Part III, shall have to be read subject to Article 33 as being enacted with a view to either restricting other fundamental rights to the extent of inconsistency or repugnancy between Part III of the Constitution and the Army Act.

Now, therefore. Articles 20, 21 or 22 if by this Army Act stand abrogated, or modified to that extent that abrogation or modification would be legal because those Articles are required to be read subject to Article 33 which itself is in Part III where other fundamental rights are enacted. Thus the whole Army Act and the Army Rules which is part of the Act could abrogate or modify any of the fundamental rights because the Army Act is the law enacted by the Parliament because of the power vested in it and Article 33 empowers the Parliament to do it. That is the correct situation and, therefore, the whole of the Army Act and all Rules of the Army Act are saved and the Parliament has power by such enactment to abrogate or modify the constitutional rights conferred upon the military personnel in Part III of the Constitution because Article 33 itself is in Part III of the Constitution.

17. The same view is expressed by the Supreme Court in the case of R. Viswan and Ors. v. Union of India and Ors. reported in : (1983)IILLJ157SC . There the question was in regard to Article 19 of the Constitution of India and it was observed as under:

Parliament was, therefore, within its power under Article 33 to enact Section 21, laying down to what extent the Central Government may restrict the Fundamental Rights under Clauses (a), (b) and (c) of Article 19(1), of any person subject to the Army Act, every such person being clearly a member of the Armed Forces. The extent to which restricts may be imposed on the Fundamental Rights under Clauses (a), (b) and (c) of Article 19(1) is clearly indicated in Clauses (a), (b) and (c) of Section 21 and the Central Government is authorised to impose restrictions on Fundamental Rights only to the extent of the rights set out in Clauses (a), (b) and (c) of Section 21 and no more.

The question was in regard to the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and the provisions of the Army Act, 1950 and Army Rules, 1954 in matters of discipline employees of GREF and it was held that GREF is an integral part of the armed forces. They were considered to be the members of armed forces within the meaning of Article 33.

18. In that view of the situation firstly this Court has no power under Article 227 of the Constitution because of Clause (4) of that Article. Further because of Article 33 of the Constitution of India, the whole of the Army Act and the Army Rules are saved and, therefore, there is no infringement of Articles 20, 21 or 14. Therefore, no petition lies under Article 226 of the Constitution of India as well.

19. Further provision in the Constitution makes it clearer that even the Court has no power to grant Special Leave to go to the Supreme Court. That is provided in Article 136(2) which runs as under:

Nothing in Clause (1) shall apply to any judgment, determination, sentence or order passed or made by any Court or Tribunal constituted by or under any law relating to the Armed Forces.

Now that, therefore, even Special Leave cannot be granted by the Supreme Court under Article 136 of the Constitution of India. There is no question of invoking Article 226 or 227 in this Court. By implication it becomes more clearer that the whole petition is misconceived and, therefore, it is required to be dismissed.

The petition fails and is dismissed. Rule is discharged.


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