Holding

Rule 40’s requirement of officers from different "corps" is satisfied by a restricted interpretation of "corps" and, together with the non‑mandatory nature of Rules 22‑24 for officers, the General Court‑Martials were valid and the petitions were dismissed.

Summary

The Supreme Court heard three writ petitions under Article 32 challenging the constitutionality and legality of orders convening General Court‑Martials for Lt Col Prithipal Singh Bedi, Capt Dharam Pal Kukrety and Capt Chander Kumar Chopra. The petitioners argued that the composition of the courts‑martial violated Rule 40 of the Army Rules, that the procedures under Rules 22‑24 and 25 infringed Articles 21 and 14 of the Constitution, and that the absence of an appeal mechanism was a fatal lacuna. The Court interpreted Rule 40 to require officers from different "corps" but held that "corps" meant battalions, regiments or similar units, not the larger "army corps", and that strict compliance is required only as far as practicable. It further held that Rules 22‑24 are mandatory only for non‑officers or when an officer expressly requests them, so non‑compliance did not vitiate the General Court‑Martial. Applying Article 33, the Court concluded that the Army Act and its Rules are valid exercises of parliamentary power and do not violate Article 21. Consequently, each General Court‑Martial was found to have been properly constituted and the petitions were dismissed.

Issues considered

The validity of the order convening a General Court‑Martial under the Army Act.
Whether the composition of the General Court‑Martial complied with Rule 40 of the Army Rules.
Whether Rules 22, 23, 24 and 25, which incorporate principles of natural justice, are mandatory for officers and their non‑compliance violates Articles 21, 14 and 19 of the Constitution.
Whether Article 33 permits Parliament to modify or abrogate fundamental rights of armed forces personnel, rendering the procedural provisions of the Army Act constitutionally valid.
The absence of an appellate review mechanism for court‑martial decisions and whether it constitutes a constitutional defect.

Legislation cited

Army Act, 1950s. 106, s. 108, s. 113, s. 125, s. 126, s. 127, s. 21, s. 69, s. 70, s. 89
Indian Evidence Act, 1872s. 133

Subjects

Army ActCourt‑MartialArticle 21Article 33Natural JusticeRule 40Military LawFundamental RightsProcedural FairnessAppeal

Judgment

/

393 A
LT. COL. PRtTHI PAL SINGB. BED! ETC.
v. .
UNION OF INDIA & OTHERS
B
August 25, 1982
• - [Y.V. CHANDRACHUD, CJ, D.A. DESAI AND A.N. SEN, JJ.]
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

··e- Constitution--:Absence of provision for appeal-A ~acuna in the Act. c
Army Rules,· 1954~Rul~s i2 to 25, 37, 40, 44, 180 and 187-Scope of-
Composilion of Court martial-Requirements of-"Corps" if nieans "Army
Corps:'-Rules 22 to 24, if violative of Article 21 of the Constitution--Trial 'by
Court martial-Prior enquiry by Court of enquiry if obligatory: ' '
> ' prescribe compliance.
Principles. of natural justic~Rules with principles of
natural justice but make it dependent. upon requisition· by the person against whom
D
enquiry is held-;-Procedure, if violates-article 21 of Constitution.

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 E
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
H 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 A
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 B
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
I.

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 A
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 B
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
398 SUPREME COURT REPORTS [1983] 1 s.c.R.

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
D 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
E 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
F 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

I
PRITHIPAL v. UNION (Desai, J.) 401

Artillery Brigade to Brig.· Sondhi for reviewing the same. While so A
reviewing the confidential reports, Brig. Sondhi .addressed a query
with respect. to the last 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 B
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

• c
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
H 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 A
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 B
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
G 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
H 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
E 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
F 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
H 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 A
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
B 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 The petitioner 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 generalcourt 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 A
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 B
action and such reference cannot be made without .
detriment to discipline.

23. 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 D
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 E
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 F
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 G
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,
H
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.

24. 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

(c) if he thinks it .desirable, re-bear· tbe·case and either
dismiss the charge or dispose of it summarily.
G
(2) .If the accused is remanded for trial by a court-martial,
the commanding officer shall without unnecessary delay
either. assemble a su,mmary cpurt··martiai' (after referr-
ing to the officer empowered to convene a district
H court-martial or on active service as summary general
court-martial when such reference is necessary) or 4
-"
PRJTHIPAL v. UNION (Desai, J.) 431

apply to the proper military authority to convene a A
court-martial, as the case may require.

· 25, Procedure on charge against offic~r : (I) Where an
officer is charged with an offence under the Act, the
B
investigation shall, if be requires it, be held and the
evidence, ff he $0 requires; be taken in bis presence, in
writing, in the same. manner as 'nearly as circumstances
admit, as is required by rule 22 and rule 23 in the case
of other persons subject to. the Act.

. (2) When an officer is remanded for the· summary disposal
c
of a charge against him or'is ordered to be tried by a
court-martiai· without any such· recordin·g of evidence
in his presence, an abstract, of evidence to be adduced
shall be ·delivered to him free of charge as provicjed in
sub-rule (7) of rule 33."
D
The submission is that before · a 'general . court martial is
convened as provided in rule 37 it is-obligatory for the commanding
officer to bear t)l_e charge made against the accused in his pre~ence
giving an opportunity to the accused to cross-examine any witness
against him and to call any witness. and make any .statement in bis
defence -and that if the commanding officer is so· satisfied be can
dismiss the charge as provided in sub-rule (2) of rule 22. If at the
conclusion of the bearing under rule 22 the commanding officer is of
·the opinion that.the charge ought to be proceeded with, he has four
options open to. him, one such being• to adjourn the case.for the
purpose of having the evidence reduced to writing, called· summary
of evidence. Rule 23 prescribes the procedure for taking down the
summary of "evidence which, in"ter alia, provides recording of the
'- evidence of each witness, opportunity to the accused to cross-
examine each such witness, etc. Rule .24 p;ovides that the summary
• of 0

evidence so recorded shall be considered by the commanding
.officer who at that stage has again three· c~urses op~n to him, to
wit, (a) remand the accused for trial by a court-martial, (b) refer the
G
case to the proper superior military authority; and (c) if be thinks it·
desirable, re-bear the case and either. dismiss the charge or dispose
.hof summarily. It was. urged that in case of the petitioner Li, Col.
0

Bedi, the commanding officer did not hear the charge in bis presence
H
\hat po direction to prepare a summary of eviden~e i~ which he
432 SUPRBMB COURT REPORTS (1983) f S.C.R.

A could participate was given and that without complying with the
mandatory requirements of rules 22 and 23 a direction ha.s been
given to convene the court-martial to try the petitioner. Rules 22
to 2~ are mandatory in respect or every person subject\ to the Act
other than an officer. Therefore, the requirements of rules 22 to
24 are not mandato.ry in case of an officer and this becomes mani-
B festly clear from sub-rule (I} of rule 25 which provides that where an
' officer is charged with an offence under the Act, the investigation
shall, if he requires it, be he_!d, and the evidence, if he so requires,
be taken in bis presence in writing in the same manner as nearly as
circumstances admit, as is required by rule 22 and rule 23 in the case
of other persons subje~t to the Act. The opening words of rule 22
clearly demonstrate the mandatory applicability of the provisions in
rule 22 and 23 rule in case of persons subject to the Act other than
officers. Any lurking doubt in that behalf is removed by the
language of rule 25 which provides that if an officer is charged with·
an offence under the Act, the investigation, if be requires; sh.all be
held and the evidence, if he requires shall be held and· the .evidence, if ·
•
requires it, shall be taken in h'is presence. }'he petitioner is an officer.
Therefore, the procedure prescribed in rules 22 and 23 will not apply
porprio vigor to him. If he wants rules 22 and 23 rule to be complied
·with, it is for him to .make a request in that behalf. He has to niake
a two-fold request : (I) that the investigation shall be done in his
E presence; and (2).. the summary of evidence shall also be drawn in
his presence. Petitioner in this case has averred in his petition that
the commanding officer did not hear the charge as required by rule
22 and, therefore, he could not participate in the hearing of the
charge ngr could be cross-examine the witnesses and make his
'\ submissions. He further stated that no ~barge-sheet was given to
F him. He has averred that the order dated ·November JO, 1980, for
taking down summary of evidence is void and illegal as it is
violative of Rule 23 of the Rules. Mr. Sanghi contended that failure .?'-·
to comply with rules 22, 23 and 24 has denied to the petitioner an
• opportunity first to convince the comrnanding officer to dismiss the
charge· under sub-rule (2) of rule 22 and even if he could noi have
G persuaded the commanding officer to dismiss the charge after the
summary of evidence was recorded, he could have persuaded the
commanding officer under rule 24 either to refer the case to
superior military authority or re-hear it and dismiss the charge and
this dential of opportunity vitiates the subsequent trik by· general
H court martial. Nowhere in the petition the petitioner has specifically
PRITIDPAL v, UNION (Desai, J.) 433

stated that he did make a request that the investigation shall be A
done in his presence and that the summary of evidence should be
recorded in his presence. · There is utter sphinx like silence on this
point. In para 39 of the counter-affidavit· on behalf of the respon-
dents it is specifically stated that rule 25 requires that ir an officer •
wants rules 22 a~d 23 to be complied with, be has to make a request ·
in that behalf and that the petitioner never made such a request at B
the appropriate time and, therefore, .cannot now· make a grievance
that rules 22 and 23 ·have not been complied . with. There is no
rejoinder to the affidavit. ·Therefore, it is crystal clear that in the
absence of a request from the petitioner as required 'by rule 25,
failure to comply with rules 22, 23 and 24 would n'ot vitiate the trial
·~ by the general court-martial. Rex v. Thomson,(') ~as relied upon c
to buttress the submission that there has to he hearing of the charge
I
by the officer Com_manding in the presence of the ·offender and the
offender should he afforded full opportunity to he heard before a court
martial is convened and this is a mandatory requirement and the
>
courts must draw a distinction between what is ·merely irregular
and what is of such a character as to be of substance. It was . D
urged that compliance with this procedure which affords· full
opportunity of participation· cannot be treated as merely directory
but must be held to be. mandatory to ensure a just and fair trial and
its violation must be held to vitiate the order convening the court-
martial and the order would. be without jurisdiction. It may be
pointed out that the offender in the case before the court in that case
was a non-commissioned officer governed by the Army Act, 188 J.
He was thus a person other than an 0 fficer subject to the Army Act
and the mandate of rules27 and 23 in his case WOl!ld have applied
,in all its rigour but as has been pointed out the petitioner in the
present case is an officer and unless he requires it, rules 22 and 23 .F
·~. are not required to be complied with and, therefore, the decision
does not advance his any further. Therefore, there is no merit in
this contention.

Incidentally it was urged thai to the extend rule 25 erodes G
mandatory compliance with principles of natural justice as
adumberated in rules 22, 23 and ·24 it wquld be violative of funda-
.. mental rights guaranteed under Article Zl of the Constitution and

(I) [1946) 4 DLR ~79.
•
\

434 iUPRBME COURT REPORTS (1983) I s.c.R. ,

A -WOUid be ultra vir<s the Constitution. Referring to Lee v.
Showmen's Guild of Greai Britain,(') it was urged that public policy
would. invalidate any stipulation excluding the application of the
rules of natural justice to a tribunal whose. decision was likely to
result in deprivation of personal liberty. ·.·Continuing along this·
line it was urged that to . the extent the application of minimum
B principles of natural justice enacted In rules 22, 23 and 24 depends
for its applicabiliiy upon the demand by the officer it would be
contrary to public policy which mandates that compliance with rules
of natural justice should not be made dependent upon a requisition
by· the person against whom the inquiry is-held but it must be deemed
to be 'obligatory and an integral part of any procedure prescribed for a
Tribunal whose decision is likely to result in deprivation of personal
liberty. It has already been pointed out that Parliament has the
power to restrict or abrogate- any of the rights conferred by Part III
of the Cons\itutioµ in their applicatipn to the members of the Armed·
Forces so as to ensure the proper discharge of duties and maint e-
• nance of discipline amongst them.· The Act is one such ·law and,
D therefore, any of the provisions of the Act cannot be struck down
on 'the only ground that they restrict or abrogate or tend to restrict
or abrogate any of the rights conferred by Part III of the Constitu-
tion and this would indisputably include Article 21. , But even apart .
from this, it is not possible to subscribe to th.e view that even· where
the prescribed procedur.e inheres compliance with principles of
E natural justice but makes the same dependent upon .the requisition
by the person against whom the inquiry is held, it would be violative
•
of Article 21 which provides that no person shall be deprived of his
0

life or personal liberty except according to tbe procedure established
by Jaw. If the procedure established by law prescribes compliance
with principles of natural justice but makes it dependent upon a
F
requisition by the person against whom an .inq'!iry aocording to such
'procedure is to be held, it is· difficult to accept the ~ubmission that
such procedure would be violative of Art. 21. And as far as the
Rules are concerned, they have made clear distinction between an !
officer governed by the Act and any other perso11 subject to the
Act. Expression 'officer' h.as been defined to mean a person commis-
sioned, gazetted. or in pay as an officer in the regular Army and
includes various other categories set out therein. By the very
definition an officer would· be a per~on belonging to the upper
bracket in the Armed Forces and any {'Cr$Ol\ other than an office~

(I) [t952)2 QB 329, .
. PR!THI PAL v. UNION (Desai.!.)
A
subject to the provisions of the Act would necessarily imply persons ·
belonging to the lower categories in the army service. Now, in
respect of sue[[ persons belonging to the lower category it is man-
datory that rules 22, 23 and 24 have to be followed and there is no
escape from it e~cept on the pain of invalidation' of the inquiry.
But wh.en it comes to an officer, a pesson belonging to the upper B
bracket in the.armed forces, the necessary presumption being that
he is a highly educated,, knowledgeable, intelligent person, compli-
ance with rules 22, 23 and 24 is not obligatory but would have t.o be.
,;
complied with if the officer so requires it. This is quite rationirl and
understandable. One cannot be heard to. say that he would not
insist upon an inquiry in which he can participate which is his right,
c
and then turn round and contend that failure to hold the inquiry in
.""' accordance with the principles of natural justice as enacted in rules --
22, 23 and 24 though he did not insist upon it,, would not merely
invalidate the inquiry but the rule which requires compliance at the
request of the officer is in itself on that' account ultra vires It,, D
> was, however, urged that in view of. the decisions of this Court tn
Mohinder Singh Gill and Anr, v.. The Chief Election Commissioner,
New Delhi & Ors.,(') and Maneka Gandhi v; Union of India, it is an
incontrovertible proposition of law that even while finding a balance
. between need for expedition and need to give full opportunity to
the person against whom the inquiry is held, "a body charged with a
duty to act judicially roust comply with the minimum requireme.nts
of natural justice and that if observance of natural justice in.the area
of administrative decision making so as to avoid devaluation of the
principle by administrators aln;ady alarroi~gly insensit(ve to the
1

rationale of audi altermpartem" that one can ever look upon with
equanimity where. this principle gives way before a 'tribunal charged F
with a duty to act judicially. As has been pithily observed by an
~ author. such an overemphasis overlooking the other procedural
\, safeguards prescribed, "indeed.' wears an engaging .air of simplicity
and reason but having examined the eritire procedure one ban say
·confidently _that this simplicity is merely skin deep." Rules ~2, 23
G
•
and 24 prescribe participation at a stage prior to the trial by the
court martial. Undoubtedly, fairness in action' and natural jusiice.
have been developing very rnueh in rec(l_nt years and .jf. the power of
the executive increases the courts have devs'loped the doctr.ine in an
H
(I) [1978] 2 SCR 272.
. 436. ~UPREMli COURT REPORTS (1983] \ S.C.R •

A evolving way so a striking out expendition is perilous.(1) By
rejecting the contention a striking expeditioR of this wholesome
· principle ii not undertaken. It must, however, be pointed out that
in a trial which is likely to result in deprivation of liberty the body
which has ultimated the power to make an order which would result
in deprivation of liberty, must hear the offender· offering full
B participation and that ·principle cannot be . diluted. However,
procedure prescribed in rules 22, 23 and 24 is at a stage anterior to
trial by the•court martial. It is the decision of the court martial
which ·would result in deprivation of liberty and not the order
directing that the ch.arge be heard or that summary of evidence be
recorded or that a court martial be convened. Even in normal trial
under the Criminal Procedure Code it has never .been sii°'ggested that

- it is unfair to launch a crminal prosecution without first hearing ~·
the accused (see Lord Salmond in Cozens v. North Daven Hospital
Management Committee('). Therefore, there is no substance in the
I

contention that rules 22, 23 and 24 in view of the provision contained
in rule 25 are ultra 'vires Article 21 of the Constitution.
0

Mr. Banerjee; learned Additional Solicitor-General in this
context urged. that even if it is felt that there is some violation of
the provisions contained in rules 22, 23 and 24 in case of an officer,
as the officer will have an opportunityto exhaustively participate in the
E tfial by the court martial the irregularity emanating from non-com-
pliance ·with rules 22, 23 and 24 would n~t vitiate the order convening •.
the court-martial. Reliance was placed on Major E.G. Barasay v. The
State of Bombay,(') in which the question arose whether an investi-
gation by an officer of the Delhi Special Police Establishment who
undertook investigation of the case and failed to comply with two
F
pre-conditions incorporated in the proviso to s. SA of the Prevention
of Corruption Act, 1950, the investigation was .vitiated and. the trial ,)('
upon such investigation would be bad. .The High Court held that f
the two conditions had not been complied with by the investigating
officer but after considering the entire evidence observed that the
G alleged irregularity would not justify th<> conclusion that the non
observance of the conditions prescribed in the priviso to s. SA 0
the Prevention of Corruption Act had resulted in failure of justice.

(I) Schmidt v. Sec. of State for ffome Affairs, [1969) 2 Ch. D. 149.
. If
H (2) [ 1962] 2 Q.B. 330@ 343,
(3) p962] 2 S.C.(l.. 195,
\
PRITm PAL v. UNION" (Desai, J.) 437

This Court agreed with this conclusion. Drawing sustenance from A
this conclusion it was urged that irreg\llarity in the course of investi-
gation, if an'y, would not vitiate the trial but in such a situation the
court must examine evidence more carefully. As, we are of the
opinion that the failure to comply _with the requirements of rules
22, 23 and 24 depended upon a requisition by the petitioner, his
inactio_n or omission in that behalf would have no impact on the order B
convening the court-martial.

Reference was al_so -made to Flying Officer S. Sundarajan v.
Union of India & Ors. ,( 1) where a Full Bench of the Delhi High
Court held that any errnr or irregularity in complying with the C
procedure prescribed by rule 15_of the Indian Air Force Rules which
is in pari materia whh rule 22 of the Rules would not vitiate the
trial and ultimate conviction of the accused because of any error or
irregularity at a stage before the accused is charged for the purpose
of having the evidence reduced to writing and it will not vitiate the
subsequent trial as the guilt of the accused has to be established not _D
on the basis of what the commanding officer might have done or ·
might not have done· at the initial stage. It was further held that -
any irregularity in the procedure at that initial stage might have a
bearing on the veracity of witnesses examined at the .'trial or on
the bona tides of the commanding officer or on the defence that may
be set up by the accused at the trial but the irregularity can by no ' Ill
mean·s - be regarded, as - affecting the jurisdiction of the court to
> proceed with the trial. Jurisprudentially speaking the view
expreseed is that Rule I 5 is directory and its contravention has no
impact on the subsequent trial. Frankly, we have our reservations
about the view taken by the Full Bench of the Delhi High Court but
as we have held that rules 22, 23 and 24 have not been violated ori F
account of the failure of the petitioner to insist upon their
compliarrce which it was ·obligatory upon him to do, we refrain from
\~ expressing any opinion_ on this point.

Mr. Sanghi next contended that it is obligatory upon the G
authorities concerned to appoint 'a cou.rt of inquiry _'whenever an
inquiry affects_ the character or military!reputation of a person subject
to the Act and -in such an inquiry full opportunity must be afforded
to such person' of being present throughout the inquiry and of making
~ I "' .
(1) AIR 1970 Delhi 29._
438 SUPRBME COURT REPORTS (1983] l s.c.R

A any statement or giving any evidence be may wish to make or give·
and of cross-exa;nining any witness whose evidence In his opinion ·
affects the character or military reputation and producing any
witness in defence of bis c.haiacter or military reputation. Th~re are
some provisions in ·the Act which ·order setting up of a Court of
Inquiry in the circumstances and- for the purpose s,et out in the
B provisions. Section 89 permits collective fines to be imposed in the
circumstances therein mentioned but the same can be done after
·obtaining the ,report of court of inquiry, In other words, where it
is ,_considered neceSS!lrY and permisible under the Act to impose a
collective fine it can be done after obtaining the report of a court of

c
inquiry whicli will presage an appointment of a such court of a
inquiry.· Similarly, section 106 comprehends the appointment of
a court of inquiry whc;_n any person subject to the Act &as been
absent from his duty without due authority.for a period of 30 'days,
an_d such court is required to inquire in respect", of the absence of
,., ,
the person and the deficiency if any in the property of the Govern-
ment entrusted to his care, or in any arms, ammunition, equipment,
instruments, clothing or necessaries, and if satisfied of the fact of such_
absence without due authority or other sufficient cause, the court
. shall declare such absence and the _period thereof, and the said
deficiency;if any the commanding officer of the corps or department
to which t~e person belongs shall ·enter in the court-martial book of
'the corps or. department a record of the deciaration. A reference to
E these two sections would show thaf where action cari be taken after
obtaining report of the court of inquiry it has been so· specified. <
Now, when an offence is committed and a trial by a general court
martial is to be held, there is n0 provision which requires that a
court of inquiry should be set up before the trial is directed. Mr.
Sanghi, however, urged that on a correct interpretation of rule 180,
it would appear· that whenever the character of a person subject to
the Act is involved in any inquiry, a court of inquiry must be set up. •
Rule 180 'does not bear out the submission. It sets up a stage in
the procedure prescribed for the courts of inquiry, Rule 180 cannot
be construed to mean that whenever or wherever· in auy inquiry in
respect of any person subject to the Act his character or military
reputation is likely to be affected setting up of a Court of inquiry
is a sine qua non. Rule 180 merely makes it obligatory that whenver .
a court of inquiry is set up and in the course of inquiry by the court
. of inquiry character or military reputation of a person is likely to
be effected then such a person must be given a full opportunity to
H
participate in the proceedings of ~our! <;>f inquiry. Cour\ of inquiry
•

i'RiTHiPAL v, ·IJN10N (besatJ.) . ~39
A
by its very nature is likely to exa~ine certain issue generally
, concerning ·a situation or persons. Where collective fine is desired
to be imposed, a court of .inq\liry may. generally examine the
shortfall to 'ascertain how many persons are responsible. Jn the
course of· such an· inquiry there may be a distinct possibility of
character or military reputation of a person subject to the Act likely B
to· be affected. His participation cannot be avoided on the specious
plea that no specific inquiry was direcied against the person whose
character or military re1mtation is involved .. To ensure that such a
person whose character or military reputation is likely to be affected
·by the proceedings of the court of inquiry should be afforded full·
opportunity so that nothing is done at his back and without oppor- c
tunity of participation, rule 180 merely makes an enabling provi~
sion. to ensure such participation. But it cannot 15e used to say
that whenever in any other inquiry or an in'quiry before· a comman-
ding officenindei:_rufo 22 or a convening officer under rule 37 of
- the trial by a court mitr\ial, character or . military reputatiori of the .
officer concerned is likely to be affected a prior inquiry by "the
court of inquiry is sine ·qua non. Therefore, the contention being
without merits must ·be negatived. .

.. It was next contended that the petitioner was not supplied the
relevant documents asked for by him and that~ therefore, 'he is not E
being afforded a full and adeql\ate opportunity to defend himself.
Rule 33 ensures prepartion for defence. by .the ac~used person." He
has a right to call witnesses in his defence. The limiied grievance is
, dated November II, .1980, he requested that do~u-
.that by his letter
ments concerning.the case against him may .be supplied to him. He
also gave the name of Sub. Gopal Chand as an essential witness. F
By his letter d_ated November 14, 1980, the·petitioner requested to
\ supply hi:n the copies of the documents therein listed. As the trial
by the court martial has not been commenced, we are sure that the
authorities concerned will supply necessary documents to the petitio-
ner in order to avoid even a remote reflection that he was not given
adequate opportunity to defend himself.

' prescribed
In passing it is necessary to.observe tha1 lhe procedure
for trial of sessions cases in Chapter XVIII of the Code of •Cri~inal.
Proced]!re when compared with the procedure pr~scribed for. trial by
a general court martial there is very little ~eviation or departure and n'
.,
440 SUPREME COURT REPORTS [!983j l s.C.R.

A more or less the procedure appears to be fair, just and reasonable,
Dr. O.P. Sharma, Judge-Advocate-General, Indian Army, in his
M ilicary Law in India, p. 156, after comparing the two proce-
dures observes that the procedure of .trial by court martial is almost
analogous to the procedure of trial in tile ordinary criminal courts.
He points out two demerits, viz., a distinct possibility of a successive
B trial by a cril"inal court and a court-martial exposing the accused to
the hazards of double jeopardy, and the absence of a provision for
bail. The horrendous delay of trial in ordinary criminal courts has
its counterpart in delay in trial by court-martial also. Save and
except this deficiency and one or two of minor character both the
procedures are almost identical and this aspect has to some extent
G influenced our decision.· ...;:
.

f
Writ Petitions 1513 of 197~ and 5930 oj 1980:

Save and except the contention as to the validity of the com-
position of the court martial no other specific contention was rais~d
D
in these tivo petitions. -

Reluctance of the apex court more concerned with civil law to
interfere with the internal affairs of the Army is likely. to create a
distorted picture in the minds ofthe military personnel that persons
subject to Army Act are not citizens of India. It is one of the car-
E dinal features of our Constitution that a person by enlisting in or
entering armed forces does not cease to l)e a citizen so as to wholly
deprive him of his rights under the Constitution. More so when •
·this Court held in Suni/ Batra v. Delhi ;4.dministration & Ors. (1) that
even prisoners deprived of personal liberty are not wholly denuded
F of their fundamental rights. In the larger interest of national secu-
rity and military discipline Parliament in its widsom may restrict or
abrogate such rights in their application to the Armed Forces but
this process should not be carried so far as io create a class of
citizens not entitled to the benefits of the liberal spirit of the Consti-
tution. Persons subject to Army Act are citizens of this aneient
G land having a feeling of belonging to the civilised community gover-
ned by the liberty oriented consitution. Personal liberty makes for
the worth of human being and is a cherished and prized right. Depri-
vation thereof must be -preceded by an· inquiry ensuring fair, just
and reasonable procedure and trial by a judge of unquestioned inte-
lJ ..
(1) [1979],1S.C.R.392 at 495.
1'Rl1111PAL v. dNION (Desai, J.) 441

grity and wholly unbiased. A marked difference in the procedure ·A
for trial of an offence by the criminal court and the court martial is
apt to generate dissatisfaction arising out of this differential treat-
ment .. Even though it is pointed out that the procedure of trial by
court martial is almost analoguous to the P'.ocedure of trial in the
ordinary criminal courts, we must recall what Justice Willi.am
B
O'Douglas observed 'that civil trial i~ held in an atmosphere condu-
cive .to the protection of individual rights whi_le a military trial is
marked by the age-old manifest destiny of retributive justice. Very
expression 'court martial' generally strikes terror in the heart ·or the
person to be tried by it. And somehow or the other the trial is
looked upon with disfavour·'(') In Reid v. Covart.( 2) Justice Black
observed at p. U 74 as under;
c
"Courts-martia,l are typically ad hoc b~dies appointed
by a military officer from among his subordinates. They
have always b'een subject to varying degrees of "comtiiand
influence". In essence, these tribunals are simply executive D
tribunals whose personnel are in the ·executive chain of
command. Frequently; the members of the court-martial
must look to the appointing officer for pro motions,· advan-
tageous assignments and efficiency ratings-in short, for their
• future progress in the service. Conceding to military per-
sonnel that high degree of honesty and sense justice E
which nearly all of them undoudtedly have, the members of
a court-martial, in the .nature of things, do not and cannot
.have the Independence of jurors drawn from the general
public or of civilian judges." ·

"Absence of even one appeal with power to review evidence; legal for- F
mulation, conclusion and adequacy or otherwise cif punishment is a
glaring lacuna i~ a country where a cou.nterpart civilian convict can
prefer appeal after appeal to hierarchy of courts. Submission that
full review of finding and/or. sentence in confirmation proceeding
under section 153 is provided for is poor solace. _A hierarchy of
courts with appellate powers each having its own power of judicial G
review has of course been found to. be counterproductive but the
converse is eq11ally distressing in that there ·is not ·even a single .
..
-
(1) -Tough Test for Militaty Justice; Time Magazine. pp. 42 & 43 1
. (2) IL. Ed. 2d. 1)48,
442 SUPREME COURT REPORTS [1983} 1 s.C.H.,

A judicial review. With the expanding horizons of fair play in action
even in administrative decision, the universal decleration of human
rights and retributive justice being relegated to the uncivilsted days,
a time has come when a step is required to be taken for at least one
1
review and it must truly be a judicial review as and by way of appeal
to a body composed of non-military personnel or civil personnel.
8 Army is always _on al~rt for repelling external aggression and supres-
sing internal disorder so that the peace loving citizens enjoy a social
order based on rule of law; the same cannot be denied to the protec-
. tors of this order. And it must be realised that an appeal from
Ceaser to Ceaser's wife ... confirmation proceeding under section 153-
has been condemned as injudicious and merely a lip sympathy to
c form. The core question is whether at least there should be one
appeal to a bo_dy composed' of non-military personnel and who
would enjoy the right of judicial review both on law and facts as also
determine the adequacy of punishment being commensurate with tlie
gravity of the offence _charged. Judicial approach by people well-
versed inobjective analysis of evidence trained by experience to look
0 at facts and law objectively, fair play and justice cannot always be
sac;ificed at the alter of military dlscipli~e. · Unjust decision would
be subversive of discipline. There must be a judicious admixture of
both. And nothing revolutionary is being suggested. Our Army
Act was more or less modelled on the U.K. Act. Three decades of
its working with winds of change blowing _over the world necessitate
E a second look so as to bring it in collformity Y(ith liberty oriented
consitution and rule of law which is the uniting and integrating force
in our political society. Even U.K. has taken a step of far reaching
importance for rehabilitating the confidence of the Royal Forces in
respect of jud.icial review of deCisions of court-martial. U.K. had
enacted a Court Martial (Appeals) Act of 1951 and it has beeo exten-
F
sively amended in court Martial (Appeals) Act, 1968. Merely
•
providing an appeal by itself may not be very re-assuring but the -'
persona al of the appellate cmi~t must inspire confidence. The court
martial appellate Court consists of the ex-offido and ordinary judges
G · of the Court of Appeal, such- of the judges of the Queen's Bench
' Division as the Lord ·Chief Justice may nominate after consultation
with th> Master of the Rolls, such of the Lords, Commissioners of
Justiciary in Scotland as the Lord Chief Justice generally may n9mi-
nate, such judges of the Supreme Court of the Northern .Ireland as
H the Lord Chief Justice of Northern Ireland may nominate and such,
of the persons of legal experience as the Lord Chall'Cellor may
i>Rl,THI PAL •. UJ'>llON (besai J.)

A
appoint. The court martial appellate court has power to determine ·
any question necessasy to be determined in order to ~do justice in the
case before the court aµd may authorise a new trial where the con-
viction is qua~hed in the light of fresh evidence. The court also has
power Inter alia, to orger production of documents or exhibit~on
nected with ·the proceedings, order the attendance of witnesses, . B
receive evidence, obtain reports and the Ii ke from the. me.mbers of
the court martial or the person who acted a Judge-Advocate, order a
reference of any question to a Special Commissioner for Inguiry and
appoint a person wit)! special expert knowledge to act as an
11ssessor,(!) Frankly the appellate court has power of full judicial
review unhampered by any' ·procedural clap trap. c
Turning towards the U.S.A., a reference to Uniform Code of
Military Justice Act, 1950, would be instructive. A provisioh has
been made for setting up of a court of military appeals. The Act
contained many· procedural reforms and due process safeguards not
then guaranted in civil courts. · To cite one example, the tight to D
legally qualified counsel was ma4e mandatory in general court-
.martial cases I 3 years before the decision of the Supreme C._onrt in
Gideon v. Waimyriget,( 2) Between 1950 and 1968 when the Adminis-
tration of Justice Act, 1968, was· Introduced, many advances were
made in the•
administration of justice by civil courts but theyf were
not reflected in military court proceedings. To correct '.these deficien.- E
cies the Congress enacted Military Justice Act, 1968, the salient
features of which are : (I) a right to legally qualified coun.sel guar-
anteed to an accused before any special court martial; (2) a military
judge can in certain circumstances conduct the trial a.lone and the
accused in such a situation is given •the option after learning the
ideptity of the military judge of requesting for the trial· by the judge F
··~ alone. A ban bas been imposed on command interference with
military justice, etc.:· Ours is still .an antiquated ·system. The wind
of change blowing over the country has not permeated the close and
• sacrosanct precincts of the Army. · If in civil courts the universally
·accepted dictum is that justice must no.t only be done but it must
seem to be done, the same holds good with all 'the greate~ vigour In' G
case of court martial where the judge and the accused done the same
dress, have the same mental discipline, have· a strong hierarchical
sulijugation and a feeling ·~f bias in such circumsta,nces is irremove-
H
(I) Halsbury"s Laws of Eogland, 4th Ed!'. Para, 954-5_5, pp. 458-59.
wm~~ ·
444 SUPREME COURT REPORTS [1983) I s.c.R.
A able. We, therefore, hope and believe that the changes all over the
English speaking democracies ~ill awaken onr Parliament to the
changed valne system. In this behalf, we would like to draw· poin-
ted attention of th_e Government to the glaring anom.aly that Courts
Martial do not even write a brief reasoned order in support of their
conclusion, even in, cases. in which. they impose the death sentenc~.
B This must be remedied in order to ensure that a disciplined and
dedicated Indian Army may not. nurse a grievance that the substance
of justice and fair play is denied to it.

With'these observations we-dismiss all the three petitions and
c vacate all interim orders. There shall be no order as to costs.

P.B.R. - Petitions.dismissed. ,