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CASE NO.:

Special Leave Petition (civil) 7347 of 1999

PETITIONER:

UNION OF INDIA & ANR.

Vs.

RESPONDENT:

CHARANJIT S. GILL & ORS.

DATE OF JUDGMENT: 24/04/2000

BENCH:

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

JUDGMENT:

SETHI, J.

Leave granted.

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Finding that the Judge Advocate was lower in rank to the

accused facing trial before a General Court Martial

(hereinafter referred to as "GCM"), the Division Bench of

the High Court set aside the order of the Trial Court and

the entire Court Martial proceedings conducted against the

respondent No.1. The Bench, however, observed that the

quashing of the proceedings of the GCM will not prevent the

authorities concerned to initiate fresh court martial

proceedings if they are so advised in accordance with law

and also in the light of the judgment delivered. Feeling

aggrieved by the aforesaid judgment the present appeal has

been filed with a prayer for setting aside the impugned

judgment and upholding the order of the GCM as well as the

learned Single Judge.

The relevant and almost admitted facts for determining

the controversy in this appeal are that the first respondent

joined the Indian Army as a Commissioned Officer in 1971 and

was promoted to the rank of Major in 1984. He was posted at

Fort William, Calcutta in April, 1990. While attached with

235 IWT company, Engineers, the respondent No.1 was alleged

to have absented himself without leave on four occasions

which was an offence under Section 39(1) of the Army Act.

He was also charged under Section 63 of the Army Act for

violation of good order and military discipline. A GCM was

convened by the General Officer Commanding (GOC), Bengal

Area by his order dated 23rd December, 1991. The court

martial comprised of Col.Rabinder Bahadur Singh as Presiding

Officer and Col. Kunjachen Puthenveetil Sebastian, Col.

Prakash Nambiar, Col. Mahitosh Deb and Major Kadam Netaji

Kesharuo as Members. Capt. Vashishta Arun Kumar, Dy.

Assistant Judge Advocate General was appointed as Judge

Advocate in the court martial proceedings. The respondent

No.1 was found guilty of four out of five charges by the GCM

and was sentenced to forfeit six months service for the

purposes of promotion. The order of conviction and sentence

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was, however, made subject to the confirmation by the

Confirming Authority to whom the proceedings were

transmitted by the GCM in terms of Section 153 of the Army

Act. The Confirming Authority felt that the sentence

awarded to the respondent No.1 by the GCM was grossly

inadequate and inappropriate which required review. The

order of the Confirming Authority dated 2.5.1992 was

conveyed to the GCM which on 19.5.1992 upon,

re-consideration revoked the earlier sentence and passed a

fresh order of sentence of dismissing the respondent No.1

from service. This order was also made subject to

confirmation by the Confirming Authority.

Aggrieved by the order of conviction and sentence passed

by the GCM, the respondent No.1 filed writ petition being CO

No.7102(W) of 1992 in the High Court at Calcutta praying

therein for quashing orders dated 23.12.1991, 10.2.1992,

2.5.1992 and 19.5.1992. At the time of admission of the

writ petition a learned Single Judge of the High Court

passed an interim order on 29th May, 1992 directing the

appellants not to confirm the impugned order of dismissal

and not to take any steps against respondent No.1, without

the leave of the Court. The interim order was, however,

vacated by the learned Single Judge on 16.12.1996 allowing

the Confirming Authority to complete the process of

confirmation and passing appropriate orders. Consequently,

the GCM proceedings were confirmed on 17.12.1996 and the

respondent No.1 was dismissed from service on 18.12.1996.

The writ petition filed by the first respondent was

dismissed by the learned Single Judge on 3rd July, 1997.

Feeling aggrieved by the judgment of the learned Single

Judge the respondent No.1 preferred appeal being MAT

No.2181/97 before the Division Bench which was allowed vide

the order impugned in this appeal.

In his writ petition the respondent No.1 is stated to

have alleged that in the year 1987-88 when he was posted as@@

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Garrison Engineer in Jammu & Kashmir State under the@@

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Northern Command, he had pointed out to the higher

authorities some embezzlement instances involving Rs.22.49

lacs in which Major S.K. Datta and Col. S.C. Gulati were

allegedly involved. He alleged that because of his

reporting the case of embezzlement he incurred animosity of

the persons in the higher echelons of the Army. He

submitted that in the year 1990 he had made a direct

complaint to the Chief of the Army Staff, Army Headquarters,

New Delhi with regard to the aforesaid embezzlement which,

according to him, generated further feelings of animosity

and ill-will against him. He was attached to 235 IWT

Company on 14th September, 1990 and allegedly not given any

duty after attachment to the said unit. On 22nd October,

1990, the Commanding Officer of 235 IWT Company called upon

the respondent No.1 to produce the evidence by 25th October,

1990 in connection with his allegations of embezzlement. At

that time the Company to which he was attached was stationed

at Alambazar, near Dakshineswar, just outside Calcutta and

his family was residing at Fort Williams, Calcutta. He was

served with a chargesheet on 18th November, 1991 signed by

the Commanding Officer, 121, Infantry Battalian (TA) which

was endorsed by the General Officer Commanding, Bengal Area.

Though the respondent No.1 was posted to 235 IWT Company

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vide order dated 12th September, 1990 he was attached on

23rd March, 1991 under the provisions of Army Instructions

30 of 1986 to 121 Infantry Battalion (TA) till finalisation

of the disciplinary proceedings which had been initiated

against him. The charge-sheet dated 18th November, 1991

disclosed the commission of offences punishable contrary to

Sections 39(a) and 63 of the Army Act. The respondent No.1

in his petition had prayed for quashing and setting aside of

orders dated 23rd December, 1991 convening the GCM, order

dated 10th February, 1992 finding the respondent No.1 guilty

and imposition of the sentence by GCM, order dated 2nd May,

1992 exercising the revisional jurisdiction by the GOC, BA

and order dated 19th May, 1992 revising the initial sentence

and dismissing the respondent No.1 from service. The

grounds of challenging the aforesaid orders were as under:

"1. The composition of the GCM, as was determined by

the Convening Order dated 23rd December, 1991 was bad in law

because Captain Arun Kumar Vashistha was not qualified to be

appointed as a Judge Advocate in the said GCM. This ground

of challenge is based on two counts, firstly because no

officer of a rank inferior to the accused can be appointed

as a Judge - Advocate in GCM and secondly the participation

of the Judge-Advocate in the proceedings held on 18th and

19th May, 1982 upon revision was bad since he was not

entitled to take part in the proceedings after 10th

February, 1992 when the GCM proceedings had originally stood

concluded.

2. GOC, BA had no jurisdiction to either convene the

GCM vide his order dated 23rd December, 1991 or to pass the

order dated 2nd May, 1992, as he was neither a properly

appointed nor a properly designated Convening Authority for

the purposes of convening a GCM nor could he be deemed

considered to be a legally and validly appointed conforming

authority for the purposes of exercising the power under

Section 160 of the Army Act. In either event, his act of

convening the GCM was illegal and therefore the proceedings

of the GCM on that ground were void ab initio. Similarly

since he did not have any power to act a confirming

authority, he had no jurisdiction to exercise any power

under section 160 of the Army Act and order revision of the

sentence. Reliance was placed upon Regulation 472 of the

Regulations for the Army in support of this contention.

3. The order dated 2nd May, 1992 was bad in law because

while exercising revisional jurisdiction under Section 160

of the Army Act, the GOC, BA not only expressed his views

and opinion about the merits of the case but the order

amounted to almost a direction upon the GCM, and the GCM

comprising, as it were, of the officers subordinate to GOC,

BA had no option but to revise the sentence, as was desired

by GOC, BA.

4. GOC, BA was also not an appropriate Convening

Authority for the purposes of convening a GCM as the

petitioner was not serving under him. Since the petitioner

was serving in the Head Quarter, Eastern Command, it was

only GOC-in-C who could be considered to be the appropriate,

convening authority in respect of the petitioner for

convening a GCM. Merely because the petitioner was attached

to a unit which was under the control of GOC, BA, that by

itself did not make GOC, BA the duly appointed convening

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authority for convening a GCM. Reliance was placed upon the

contents of warrant A-1 appointing GOC, BA and GOC-in-C as

respective convening authorities.

5. The sentence of dismissal for a minor offence like

being absent without leave, and for committing an offence

under section 63 of the Army Act was highly and grossly

disproportionate to the gravity of the offence. Even if the

proceedings of the GCM and the finding of "guilty" was to be

upheld by this court, the initial sentence of forfeiture of

six months of service for the purpose of promotion was a

reasonable punishment in the facts and circumstances of this

case.

6. Distinction has to be drawn between "absent from a

place" and absence from duty" because in the facts and

circumstances in which the petitioner was placed, the

petitioner was not allocated or entrusted with any duties

and therefore if he absented from a place, without there

being any duty that he was to perform, Section 39 of the

Army Act could not be attracted in his case and therefore he

could not be held guilty of the charges levelled against

him.

7. The appropriate Confirming Authority have been

prescribed in Regulation 472 and even though this Regulation

is not statutory in character and has not been issued under

Section 192 of the Army Act, yet it amounting to an

executive instruction has the force of law and thus

supersedes the warrants issued by the Central Government

under Section 164 of the Army Act. The contention is that

the authorities prescribed in Regulation 472 alone are

competent to act as confirming or convening authorities and

that the authorities appointed under the warrants by the

Central Government in exercise of the powers vesting in its

under Section 154 have no jurisdiction to act as such.

8. The order dated 17th December, 1996 is bad because

it was passed without affording the petitioner an

opportunity of submitting a pre- confirmation

representation, as was directed by this court on 16th

December, 1996."

None of the grounds found favour with the learned Single

Judge who after hearing dismissed the writ petition. The

respondent No.1 was, however, given two weeks time to vacate

the accommodation occupied by him upon his giving an

undertaking. The appeal filed against the judgment of the

learned Single Judge was allowed holding: "However, without

deciding any other point we are of the view that a

Judge-Advocate being lower in rank to an accused officer

should not be able to take part in the general court-martial

proceedings for the above reason."

Mr.Rawal, the learned Additional Solicitor General

appearing for the appellants has vehemently argued that as

the Judge Advocate is only a Legal Advisor and not a member

of the Court Martial, his rank is not material for being

appointed as such to assist the GCM. It is further

contended that under the Army Act, Rules and Regulations

made thereunder, there was no obligation for the appellants

to appoint a Judge-Advocate who should have been senior in

rank to the accused on the analogy that the members of the

court martial who tried the accused are required to be of

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the same or higher rank to the accused officers. According

to him there are separate provisions under the Act, Rules

and Regulations for members and Judge-Advocate at GCM laying

down their eligibility, disqualifications, duties, etc.

Relying upon Note 2 attached to Rule 102, the learned

counsel has submitted that the disqualification for being a

Judge-Advocate in a court martial is referable to Rule 39(2)

alone which cannot be stretched further to Rule 40(2) of the

Rules. It is contended that the Division Bench of the High

Court has not properly interpreted the provisions of

Sections 113 and 129 of the Act and Rules 39, 40 and 102 of

the Army Rules. Appearing for the respondent No.1 Mr.Ranjit

Kumar, Advocate has submitted that the combined reading of@@

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Rules 39, 40 and 102 makes it clear that if the@@

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Judge-Advocate is lower in rank than the accused facing the

trial in GCM, the proceedings are liable to be quashed.

According to him the provisions of Rule 39 read with Rules

40 and 102 of the Army Rules leave no doubt that the

Judge-Advocate appointed for the trial of an officer by the

GCM should be a rank not lower than that of the Officer

facing the trial. He has submitted that though, technically

the Judge-Advocate is an Advisor to the prosecution, yet in

practice he wields a great influence upon the verdict of the

court in view of the powers conferred upon him under the Act

and the Rules. He has specifically referred to the

provisions of Rules 60, 61, 62 and 105 of the Rules to

emphasise the importance of the role played by the Judge-

Advocate during the trial in a court martial. In order to

appreciate the rival contentions of the learned counsel for

the parties it is necessary to take note of some of the

relevant provisions of the Act, the Rules and the

Regulations made thereunder. The Act was enacted on 20th

May, 1950 and enforced w.e.f. 22nd July, 1950 to

consolidate and amend the law relating to the Government of

the regular Army keeping in view the report of the Select

Committee appointed for the purpose. Prior to the enactment

of Army Act, 1950, there existed the Indian Army Act, 1911

made and applied by the British Rulers. Feeling that some

of the provisions of the 1911 Act had become out of date and

insufficient for modern requirements after independence, a

need for revision was felt to have become imperative for

obvious reasons. However, the scheme of the Act by and

large remained the same as was incorporated in Army Act,

1911. The Act has been found to be suffering from various

draw-backs as were pointed out by this Court in Lt.Col.

Prithi Pal Singh Bedi vs. Union of India & Ors. [1982 (3)

SCC 140]. This Court hoped and stressed that changes all

over the English speaking democracies would awaken the

Parliament to the changed system as regards the Armed

Forces. Merely by joining the Armed Forces a person does

not cease to be a citizen so as to be wholly deprived of his

rights under the Constitution. While dismissing the writ

petitions in that case, this Court noticed with anguish and

concern and observed: "Reluctance of the apex court more

concerned with civil law to interfere with the internal

affairs of the Army is likely to create a distorted picture

in the minds of the military personnel that persons subject

to Army Act are not citizens of India. It is one of the

cardinal features of our Constitution that a person by

enlisting in or entering Armed Forces does not cease to be a

citizen so as to wholly deprive him of his rights under the

Constitution. More so when this Court held in Sunil Batra

v. Delhi Administration [1979 (1) SCR 394] that even

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prisoners deprived of personal liberty are not wholly

denuded of their fundamental rights. In the larger interest

of national security and military discipline Parliament in

its wisdom may restrict or abrogate such rights in their

application to the Armed Forces but this process should not

be carried so far as to create a class of citizens not

entitled to the benefits of the liberal spirit of the

Constitution. Persons subject to Army Act are citizens of

this ancient land having a feeling of belonging to the

civilised community governed by the liberty-oriented

constitution. Personal liberty makes for the worth of human

being and is a cherished and prized right. Deprivation

thereof must be preceded by a judge of unquestioned

integrity and wholly unbiased. A marked difference in the

procedure for trial of an offence by the criminal court and

the court martial is apt to generate dissatisfaction arising

out of this differential treatment. Even though it is

pointed out that the procedure of trial by court martial is

almost analogous to the procedure of trial in the ordinary

criminal courts, we must recall that Justice William

O'Douglas observed: "[T]that civil trial is held in an

atmosphere conducive to the protection of individual rights

while a military trial is marked by the age-old manifest

destiny of retributive justice. Very expression 'court

martial' generally strikes terror in the heart of the person

to be tried by it. And somehow or the other the trial is

looked upon with disfavour." In Reid v. Covert {1 L Ed 2d

1148: 354 US 1 (1957)] Justice Black observed at page 1174

as under:

Court martial are typically ad hoc bodies appointed by a

military officer from among his subordinates. They have

always been subject to varying degrees of 'command

influence'. In essence, these tribunals are simply

executive tribunals whose personnel are in the executive

chain of command. Frequently, the members of the court

marital must look to the appointing officer for promotions,

advantageous assignments and efficiency ratings - in short,

for their future progress in the service. Conceding to

military personnel that high degree of honesty and sense of

justice which nearly all of them undoubtedly have, the

members of a court martial, in the nature of things, do not

and cannot have the independence of jurors drawn from the

general public or of civilian judges.

Absence of even one appeal with power to review

evidence, legal formulation, conclusion and adequacy of

otherwise of punishment is a glaring lacuna in a country

where a counterpart civilian convict can prefer appeal after

appeal to hierarchy of courts. Submission that full review

of finding and/or sentence in confirmation proceedings under

Section 153 is provided for is poor solace. A hierarchy of

courts with appellate powers each having its own power of

judicial review has of course been found to be counter

productive but the converse is equally distressing in that

there is not even a single judicial review. With the

expanding horizons of fair play in action even in

administrative decision, the universal declaration of human

rights and retributive justice being relegated to the

uncivilised days, a time has come when a step is required to

be taken for at least one review and it must truly be a

judicial review as and by way of appeal to a body composed

of non-military personnel or civil personnel. Army is

always on alert for repelling external aggression and

suppressing internal disorder so that the peace-loving

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citizens enjoy a social order based on rule of law; the

same cannot be denied to the protectors of this order. And

it must be realised that an appeal from Ceaser to Ceaser's

wife - confirmation proceedings under Section 153 - has been

condemned as injudicious and merely a lip sympathy to form.

The core question is whether at least there should be one

appeal to a body composed of non-military personnel and who

would enjoy the right of judicial review both on law and

facts as also determine the adequacy of punishment being

commensurate with the gravity of the offence charged.

Judicial approach by people well-versed in objective

analysis of evidence trained by experience to look at facts

and law objectively, fair play and justice cannot always be

sacrificed at the altar of military discipline. Unjust

decision would be subversive of discipline. There must be a

judicious admixture of both. An nothing revolutionary is

being suggested. Our Army Act was more or less modelled on

the U.K. Act. Three decades of its working with winds of

change blowing over the world necessitates a second look so

as to bring in it conformity with liberty-oriented

constitution and rule of law which is the uniting and

integrating force in our political society. Even U.K. has

taken a step of far-reaching importance for rehabilitating

the confidence of the Royal Forces in respect of judicial

review of decisions of court martial. U.K. had enacted a

Court Martial (Appeal) Act of 1951 and it has been

extensively amended in Court Martial (appeals) Act, 1968.

Merely providing an appeal by itself may not be very

reassuring but the personnel of the appellate court must

inspire confidence. The court martial appellate court

consists of the ex officio and ordinary judges of the Court

of Appeal, such of the judges of the Queen's Bench Division

as the Lord Chief Justice may nominate after consultation

with the Master of the Rolls, such of the Lords,

Commissioners of Justiciary in Scotland as the Lord Chief

Justice generally may nominate, such Judges of the Supreme

Court of the Northern Ireland as the Lord Chief Justice of

Northern Ireland may nominate and such of the persons of

legal experience as the Lord Chancellor may appoint. The

court martial appellate court has power to determine any

question necessary to be determined in order to do justice

in the case before the court and may authorise a new trial

where the conviction is quashed in the light of fresh

evidence. The court has also power inter alia, to order

production of documents or exhibits connected with the

proceedings, order the attendance of witnesses, receive

evidence, obtain reports and the like from the members of

the court martial or the person who acted as Judge-Advocate,

order a reference of any question to a Special Commissioner

for Enquiry and appoint a person with special expert

knowledge to act as an assessor (Halsbury's Laws of England,

4th Edn., paras 954-955 pp. 458-59). Frankly the appellate

court has power to full judicial review unhampered by any

procedural claptrap.

Turning towards the U.S.A., a refernece to Uniform Code

of Military Justice Act, 1950, would be instructive. A

provision has been made for setting up of a court of

military appeals. The Act contained many procedural reforms

and due process safeguards not then guaranteed in civil

courts. To cite one example, the right to legally qualified

counsel was made mandatory in general court martial cases 13

years before the decision of the Supreme Court in Gideon v.

Waiwright (372 US 335 1963)). Between 1950 and 1968 when

the Administration of Justice Act, 1968 was introduced, many

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advances were made in the administration of justice by civil

courts but they were not reflected in military court

proceedings. To correct these deficiencies the Congress

enacted Military Justice Act, 1968, the salient features of

which are: (1) a right to legally qualified counsel

guaranteed to an accused before any special court martial;

(2) a military judge can in certain circumstances conduct

the trial alone and the accused in such a situation is given

the option after learning the identity of the military judge

of requesting for the trial by the judge alone. A ban has

been imposed on command interference with military justice,

etc. Ours is still an antiquated system. The wind of

change blowing over the country has not permeated the close

and sacrosanct precincts of the Army. if in civil courts

the universally accepted dictum is that justice must not

only be done but it must seem to be done, the same holds

good with all the greater vigour in case of court martial

where the judge and the accused don the same dress, have the

same mental discipline, have a strong hierarchical

subjugation and a feeling of bias in such circumstances is

irremovable. We, therefore, hope and believe that the

changes all over the English-speaking democracies will

awaken our Parliament to the changed value system. In this

behalf, we would like to draw pointed attention of the

Government of the glaring anomaly that courts martial do not

even write a brief reasoned order in support of their

conclusion, even in cases in which they impose the death

sentence. This must be remedied in order to ensure that a

disciplined and dedicated Indian Army may not nurse a

grievance that the substance of justice and fair play is

denied to it."

Despite lapse of about two decades neither the

Parliament nor the Central Government appears to have

realised their constitutional obligations, as were expected

by this Court, except amending Rule 62 providing that after

recording the finding in each charge the Court shall give

brief reasons in support thereof. The Judge-Advocate has

been obliged to record or caused to be recorded brief

reasons in the proceedings. Even today the law relating to

Armed Forces remains static which requires to be changed

keeping in view the observations made by this Court in

Prithi Pal Singh Bedi's case (supra), the constitutional

mandate and the changes effected by other democratic

countries. The time has come to allay the apprehension of

all concerned that the system of trial by court martial was

not the arch type of summary and arbitrary proceedings. In

the absence of effective steps taken by the Parliament and

the Central Government, it is the constitutional obligation

of the courts in the country to protect and safeguard the

constitutional rights of all citizens including the persons

enrolled in the Armed Forces to the extent permissible under

law by not forgetting the paramount need of maintaining the

discipline in the Armed Forces of the country. The court

martials under the Act are not courts in the strict sense of

the term as understood in relation to implementation of the

civil laws. The proceedings before court martial are more

administrative in nature and of the executive type. Such

courts under the Act, deal with two types of offences,

namely, (1) such acts and omissions which are peculiar to

the Armed Forces regarding which no punishment is provided

under the ordinary law of the land and (2) a class of

offences punishable under the Indian Penal Code or any other

legislation passed by the Parliament. Chapter VI of the Act

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deals with the offences. Sections 34 to 68 relate to the

offences of the first description noted hereinabove and

Section 69 with civil offences which means the offence

triable by an ordinary criminal court. Chapter VII provides

for punishments which can be inflicted in respect of

offences committed by persons subject to the Act and

convicted by court martial, according to the scale provided

therein. Chapter X deals with court martials. Section 108

provides that for the purposes of the Act there shall be

four kinds of court martials, that is to say,

(a) general court-martial;

(b) district court-martial;

(c) summary general court-martial; and

(d) summary court-martial.

Court martials can be convened by persons and

authorities as specified in Sections 109, 110, 112 and 118

of the Act. The procedure of court martials is detailed in

Chapter XI of the Act. Section 129 mandates that every

general court-martial shall be attended by a judge advocate,

who shall be either an officer belonging to the department

of Judge Advocate-General or if no such officer is

available, an officer approved by the Judge-Advocate General

or any of his deputies. The accused has a right to

challenge the name of any officer composing the court

martial which obviously means that no such objection can be

raised regarding the appointment of the Judge-Advocate. No

findings or sentence of a general, district or summary

general court martial shall be valid except so far as it may

be confirmed as provided under the Act. Under Section 158,

the confirming authority has the power to mitigate or remit

the punishment awarded by the court martial or commute that

punishment for any punishment or punishments lower in the

scales laid down in Section 71. Under Section 160 the

confirming authority has the power to direct a revision of

the finding of a court martial and on such revision, the

court, if so directed by the confirming authority, may take

additional evidence. Any person, subject to the Act, who

considers himself aggrieved by any order passed by the court

martial can present a petition to the officer or authority

empowered to confirm any finding or sentence of such court

martial and in that case the confirming authority may take

such steps as may be considered necessary to satisfy itself

as to the correctness, legality or propriety of the order

passed or as to the regularity of any proceedings to which

the order relates. There is no provision for preferring an

appeal against the findings of the court martial.

In exercise of the powers conferred by Section 191 of

the Act the Central Government have framed the Rules called

the Army Rules, 1954. Chapter V of the Rules deals with the

investigation of charges and trial by court-martial.

Court-martials are convened in terms of Rule 37. Rule 39

prescribes ineligibility and disqualification of officers

for court-martial. It reads:

"Ineligibility and disqualification of officers for

court- martial --(1) An officer is not eligible for serving

on a court-martial if he is not subject to the Act.

(2) An officer is disqualified for serving on a general

or district court-martial if he --

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

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

or

(c) investigated the charges before trial, or took down

the summary of evidence, or was a member of a court of

inquiry respecting the matters on which the charges against

the accused are founded, or was the squardon, battery,

company, or other commander, who made preliminary inquiry

into the case, or was a member of a previous court-martial

which tried the accused in respect of the same offence; or

(d) is the commanding officer of the accused, or of the

corps to which the accused belongs; or

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

(3) The provost-marshal or assistant provost-marshal is

disqualified from serving on a general court-martial or

district court-martial.

Rule 40 provides:

"40. Composition of General Court-martial (1) A general

court martial shall be composed, as far as seems to the

convening officer practicable, of officers of different

corps or departments, and in no case exclusive of officers

of the corps or department to which the accused belongs.

(2) The members of a court martial for the trial of an

officer shall be of a rank not lower than that of the

officer unless, in the opinion of the convening officer,

officers of such rank are not (having due regard to the

exigencies of the public service) available. Such opinion

shall be recorded in the convening order.

(3) In no case shall an officer below the rank of

captain be a member of court-martial for the trial of a

field officer."

Rule 44 provides that the order convening the court and

the names of the Presiding Officer and the members of the

court shall be read over to the accused and he shall be

asked as required by Section 130 whether he has any

objection to being tried by any officer sitting on the

court. Such objection when raised is required to be

disposed of in accordance with the provisions of Section

130. The accused before pleading to a charge, may offer a

special plea to the jurisdiction of the court and if he does

so, the court shall decide it. If the objection regarding

such plea is overruled, the court shall proceed with the

trial and if such plea is allowed, the court is required to

record its reason and report to the convening authority and

adjourn the proceedings (Rule 51). Rules 52, 53, 54, 55 and

56 deal with the recording of the plea of "guilty" or "not

guilty". In case the accused pleds not guilty, the trial is

to commence and after the close of the case of the

prosecution, the Presiding Officer or the Judge-Advocate is

required to explain to the accused that he may make an

unsworn statement orally or in writing giving his account of

the subject of charges against him or if he wishes he may

give evidence as witness on oath or affirmation, in disproof

of the charges against him or any person to be charged with

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him at the same trial. After the examination of the

witnesses, the prosecutor may make a closing address and the

accused or his counsel or the defending officer, as the case

may be, shall be entitled to reply. The Judge- Advocate is

authorised to sum up in open court the evidence and advise

the court upon the law relating to the case. Rule 61

provides that the court shall deliberate on its finding in

closed court in the presence of the Judge-Advocate and Rule

62 provides the form, record and announcement of finding.

Referring to various provisions of the Act and the Rules

as noticed earlier, the learned counsel appearing for

respondent No.1 has argued that in effect and practice the

Judge-Advocate is the 'court' and the 'court-martial' is the

jury for all practical purposes so far as the trial of the

accused is concerned. The argument may be exaggerated

version of the reality but is not totally without substance

inasmuch as the powers exercised by the Judge-Advocate

indicate that though not forming part of the court-martial,

he is an integral part thereof particularly in

court-martials which cannot be conducted in his absence. It

cannot be denied that the justice dispensation system in the

Army is based upon the system prevalent in the Great

Britain. The position of the Judge-Advocate is by no means

less than that of a Judge-Advocate associated with a

court-martial in that country. The importance of the role

of the Judge-Advocate in U.K. was noticed and considered in

R v. Linzee [1956 (3) All E.R.].

It is true that Judge-Advocate theoritically performs no

function as a judge but it is equally true that he is an

effective officer of the court conducting the case against

the accused under the Act. It is his duty to inform the

court of any defect or irregularity in the charge and , in

the constitution of the court or in the proceedings. The

quality of the advise tendered by the Judge-Advocate is very

crucial in a trial conducted under the Act. With the role

assigned to him a Judge-Advocate is in a position to sway

the minds of the members of the court-martial as his advise

or verdict cannot be taken lightly by the person composing

the court who are admittedly not law knowing persons. It is

to be remembered that the court-martials are not part of the

judicial system in the country and are not permanent courts.

The importance of role played by a Judge-Advocate was

noticed by this Court in S.N. Mukherjee vs. Union of India

[1990 (4) SCC 594] wherein it was held: "From the

provisions referred to above it is evident that the

judge-advocate plays an important role during the course of

trial at a general court martial and he is enjoined to

maintain an impartial position. The court martial records

its findings after the judge-advocate has summed up the

evidence and has given his opinion upon the legal bearing of

the case. The members of the court have to express their

opinion as to the finding by word of mouth on each charge

separately and the finding on each charge is to be recorded

simply as a finding of "guilty" or of "not guilty". It is

also required that the sentence should be announced

forthwith in open court. Moreover Rule 66(1) requires

reasons to be recorded for its recommendation in cases where

the court makes a recommendation to mercy. There is no such

requirement in other provisions relating to recording of

findings and sentence. Rule 66(1) proceeds on the basis

that there is no such requirement because if such a

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requirement was there it would not have been necessary to

make a specific provision for recording of reasons for the

recommendation to mercy. The said provisions thus negative

a requirement to give reasons for its finding and sentence

by the court martial and reasons are required to be recorded

only in cases where the court martial makes a recommendation

to mercy. In our opinion, therefore, at the stage of

recording of findings and sentence the court martial is not

required to record its reasons and at that stage reasons are

only required for the recommendation to mercy if the court

martial makes such a recommendation.

As regards confirmation of the findings and sentence of

the court martial it may be mentioned that Section 153 of

the Act lays down that no finding or sentence of a general,

district or summary general, court martial shall be valid

except so far as it may be confirmed as provided by the Act.

Section 158 lays down that the confirming authority may

while confirming the sentence of a court martial mitigate or

remit the punishment thereby awarded, or commute that

punishment to any punishment lower in the scale laid down in

Section 71. Section 160 empowers the confirming authority

to revise the finding or sentence of the court martial and

in sub-section (1) of Section 160 it is provided that on

such revision, the court, if so directed by the confirming

authority, may take additional evidence. The confirmation

of the finding and sentence is not required in respect of

summary court martial and in Section 162 it is provided that

the proceedings of every summary court martial shall without

delay be forwarded to the officer commanding the division or

brigade within which the trial was held or to the prescribed

officer; and such officer or the Chief of the Army Staff or

any officer empowered in this behalf may, for reasons based

on the merits of the case, but not any merely technical

grounds, set aside the proceedings or reduce the sentence to

any other sentence which the court might have passed. In

Rule 69 it is provided that the proceedings of a general

court martial shall be submitted by the judge-advocate at

the trial for review to the deputy or assistant judge-

advocate general of the command who shall then forward it to

the confirming officer and in case of district court martial

it is provided that the proceedings should be sent by the

presiding officer, who must, in all cases, where the

sentence is dismissal or above, seek advice of the deputy or

assistant judge-advocate general of the command before

confirmation. Rule 70 lays down that upon receiving the

proceedings of a general or district court martial, the

confirming authority may confirm or refuse confirmation or

reserve confirmation for superior authority, and the

confirmation, non-confirmation, or reservation shall be

entered in and form part of the proceedings. Rule 71 lays

down that the charge, finding and sentence, and any

recommendation to mercy shall, together with the

confirmation, non-confirmation of the proceedings, be

promulgated in such manner as the confirming authority may

direct, and if no direction is given, according to custom of

the service and until promulgation has been effected,

confirmation is not complete and the finding and sentence

shall not be held to have been confirmed until they have

been promulgated."

In view of what has been noticed hereinabove, it is

apparent that if a 'fit person' is not appointed as a

judge-advocate, the proceedings of the court martial cannot

be held to be valid and its finding legally arrived at.

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Such an invalidity in appointing an 'unfit' person as a

judge-advocate is not curable under Rule 103 of the Rules.

If a fit person possessing requisite qualifications and

otherwise eligible to form part of the general court martial

is appointed as a judge-advocate and ultimately some

invalidity is found in his appointment, the proceedings of

the court martial cannot be declared invalid. A "fit

person" mentioned in Rule 103 is referable to Rules 39 and

40. It is contended by Shri Rawal, learned ASG that a

person fit to be appointed as judge-advocate is such officer

who does not suffer from any ineligibility or

disqualification in terms of Rule 39 alone. It is further

contended that Rule 40 does not refer to disqualifications.

We cannot agree with this general proposition made on behalf

of the appellant inasmuch as Sub-rule (2) of Rule 40

specifically provides that members of a court-martial for

trial of an officer should be of a rank not lower than that

of the officer facing the trial unless such officer is not

available regarding which specific opinion is required to be

recorded in the convening order. Rule 102 unambiguously

provides that "an officer who is disqualified for sitting on

a court martial shall be disqualified for acting as a

judge-advocate in a court martial". A combined reading of

Rules 39, 40 and 102 suggest that an officer who is

disqualified to be a part of court martial is also

disqualified from acting and sitting as a judge-advocate at

the court martial. It follows, therefore, that if an

officer lower in rank than the officer facing the trial

cannot become a part of the court martial, the officer of

such rank would be disqualified for acting as a

judge-advocate at the trial before a GCM. Accepting a plea

to the contrary, would be invalidating the legal bar imposed

upon the composition of the court in sub-rule (2) of Rule

40.

Arguments of the learned ASG, if analysed critically,

and accepted would mean that in effect and essence no

disqualification or eligibility can be assigned to any

officer in becoming a judge-advocate. Stretching it further

it can be argued that as Rule 40 does not refer to the

ineligibility or disqualification of an officer to be a

judge-advocate, even an officer below the rank of a Captain

can become a member of the court martial for the trial of a

Field Officer as bar of sub-rule (3) of Rule 40 is not

applicable. Such an interpretation is uncalled for and

apparently contradictory in terms.

The purpose and object of prescribing the conditions of

eligibility and qualification along with desirability of

having members of the court martial of the rank not lower

than the officer facing the trial is obvious. The law

makers and the rule framers appear to have in mind the

respect and dignity of the officer facing the trial till

guilt is proved against him by not exposing him to

humiliation of being subjected to trial by officers of lower

in rank. The importance of the judge-advocate as noticed

earlier being of a paramount nature requires that he should

be such person who inspires confidence and does not subject

the officer facing the trial to humiliation because the

accused is also entitled to the opinion and services of the

judge-advocate. Availing of the services or seeking advise

from a person junior in rank may apparently be not possible

ultimately resulting in failure of justice.

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

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higher in rank than the officers facing the trial in court@@

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martials are not available, an interpretation as rendered by@@

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the impugned judgment would render the holding of court

martials impossible. Such an argument is to be noticed for

only being rejected. Sub-rule (2) of Rule 40 itself gives a

discretion to the convening officer who is authorised to

appoint a member of the court-martial or judge-advocate who

is lower in rank than the officers facing the trial, if he

is of the opinion that officer of such rank is not (having

due regard to the exigencies of the public service)

available, subject to a further condition that such opinion

is required to be recorded in the convening order. It

implied, therefore, that the provisions of sub-rule (2) of

Rule 40 are not mandatory because they give a discretion to

appoint a member of the court martial or a judge-advocate

who is lower in rank than the officer facing the trial under

the circumstances specified. Rule 39, admittedly, has no

exception and is thus mandatory.

Further relying upon Note 2 mentioned at the foot of

Rule 102 providing, "as to disqualification of a

judge-advocate CAR 39(2)", the learned ASG submitted that

the said Note having the force of law has been followed by

the Army authorities from the very beginning and thus

disqualifications of a judge-advocate are referable to only

Rule 39(2) of the Rules. It is contended as the source of

the Rules and the Note thereto is the same, the efficacy of

Note 2 cannot be minimised. The Army authorities, according

to the learned ASG have understood Rules 39, 40 and 102 in

this context while making appointments of the judge-

advocate.

In response to our directions an affidavit has been

filed on behalf of the appellants with respect to:

(a) the authority which had prepared the Notes appearing

in Army Act, 1950 and Army Rules, 1954

(b) the year in which these Notes were incorporated in

the Army Act, 1950 and Army Rules, 1954.

(c) the authority which had approved these Notes to be

incorporated in the Army Act and the Rules framed

thereunder. stating therein:

"That Army Act, 1950 was enacted on the pattern of the

Indian Army Act, 1911 and Army Rules, 1954 are on the

pattern of Indian Army Act Rules, Army Rule 89 of Indian

Army Act Rules dealt with disqualifications of Judge-

advocate. It also had note stating that for

disqualification, see the Rule dealing with the Rule pari

materia to Rule 39 of the present Rules that is Army Rules,

1959.

That the manual of Indian Military Law, 1937, published

by Govt. of India, Ministry of Defence (Corrected upto

1960) Reprint 1967, also contains Indian Army Act, 1911 with

Notes as well as the Indian Army Act Rules with Notes.

Since this was 1967 reprint, in this manual even Army Act,

1950 and Army Rules, 1954 are also contained.

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That in the year 1978 the JAG's Department compiled the

Army Act & Rules in the new Manual with a view to make it

more convenient for reference. Prior to it, as stated

above, the Military Law of the country was outlined in the

Manual of Military Law, 1937. The Manual contained the

Indian Army Act, 1911, the Indian Army Act & Rules and

explanatory notes under various Sections and Rules. The

passage of time necessitated revision of the Manual and

incorporation of explanatory notes under the relevant

sections and clauses of the Army Act, 1950 and Army Rules,

1954. It also became necessary to include some other

enactments essential to the subject, and to exclude from the

Manual the repealed Indian Army Act, 1911 and the superseded

Indian Army Act Rules. The Manual of Military Law

containing explanatory Notes under the current and operative

Army Act & Rules were issued in 1983.

That as stated above, the Manual of Military Law issued

in 1983 was compiled by the office of Judge Advocate General

and approved by the Govt. as evident from the preface of

the Manual.

That the Notes to Army Act and Army Rules were appended

to Indian Army Act, 1911 and the Indian Army Act Rules and

were followed as explanatory Notes and guidance. These

suitably modified and amended were formally appended to the

relevant provisions of the Army Act, 1950 and Army Rules,

1954 in 1983 after the same were duly approved by the Govt.

That no facts which were not pleaded before court below have

not been pleaded."

However, no material has been placed on record to show

that the Notes appended to the Rules were duly approved by

the Government. Per contra the respondent No.1 in his

affidavit has submitted that the Notes under Sections and

Rules as are found under various provisions of law compiled

by the Army authorities in the Manual of Military Law do not

form part of the Army Act, 1950 and Army Rules, 1954. The

Rules of 1954 are stated to have been borrowed from the

Indian Army Act, 1911 and the Rules framed thereunder. It

is contended that the Notes are not law passed by Parliament

and have not been vetted even by the Ministry of Law &

Justice or by the Law Commission. It is not disputed that

Section 191 of the Army Act empowers the Central Government

to make rules for the purpose of carrying into effect the

provisions of the Act and Section 192 to make regulations

for all or any of the provisions of the Act other than those

specified in Section 191. All Rules and Regulations made

under the Act are required to be published in the official

gazette and on such publication shall have the effect as if

enacted in the Act. No power is conferred upon the Central

Government of issuing Notes or issuing orders which could

have the effect of the Rules made under the Act. Rules and

Regulations or administrative instructions can neither be

supplemented nor substituted under any provision of the Act

or the Rules and Regulations framed thereunder. The

administrative instructions issued or the Notes attached to

the Rules which are not referable to any statutory authority

cannot be permitted to bring about a result which may take

away the rights vested in a person governed by the Act. The

Government, however, has the power to fill up the gaps in

supplementing the rules by issuing instructions if the Rules

are silent on the subject provided the instructions issued

are not inconsistent with the Rules already framed.

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Accepting the contention of holding Note 2 as supplementing

Rules 39 and 40 would amount to amending and superseding

statutory rules by administrative instructions. When Rule

39 read with Rule 40 imposes a restriction upon the

Government and a right in favour of the person tried by a

court-martial to the effect that a person lower in rank

shall not be a member of the court martial or be a

judge-advocate, the insertion of Note 2 to Rule 102 cannot

be held to have the effect of a Rule or Regulation. It

appears that the 'notes' have been issued by the authorities

of the Armed Forces for the guidance of the officers

connected with the implementation of the provisions of the

Act and the Rules and not with the object of supplementing

or superseding the statutory Rules by administrative

instructions. After examining various provisions of the

Act, the Rules and Regulations framed thereunder and

perusing the proceedings of the court-martial conducted

against the respondent No.1, we are of the opinion that the

judge-advocate though not forming a part of the court, yet

being an integral part of it is required to possess all such

qualifications and be free from the disqualifications which

relate to the appointment of an officer to the

court-martial. In other words a judge-advocate appointed

with the court-martial should not be an officer of a rank

lower than that the officer facing the trial unless the

officer of such rank is not (having due regard to the

exigencies of public service) available and the opinion

regarding non-availability is specifically recorded in the

convening order. As in the instant case, judge-advocate was

lower in rank to the accused officer and no

satisfaction/opinion in terms of sub- rule (2) of Rule 40

was recorded, the Division Bench of the High Court was

justified in passing the impugned judgment, giving the

authorities liberty to initiate fresh court-martial

proceedings, if any, if they are so advised in accordance

with law and also in the light of the judgment delivered by

the High Court.

Fears have been expressed that in case the proceedings

of the court-martial are quashed on the ground of the

judge-advocate being lower in rank than the officer facing

trial before the court-marital, many judgments delivered,

orders passed and actions taken by various court-martials

till date would be rendered illegal as according to

appellants a number of court-martials have already been held

and conducted under the assumption of the disqualification

not being referable to Rule 40(2), on the strength of Note 2

attached to Rule 102 of the Rules. In that event, it is

apprehended, a flood-gate of new litigation would be opened

which ultimately is likely to not only weaken the discipline

in the Armed Forces but also result in great hardship to all

those whose rights have already been determined. Such an

apprehension is misplaced in view of "de facto doctrine"

born out of necessity as acknowledged and approved by

various pronouncements of the courts. This Court in

Gokaraju Rangaraju vs. State of Andhra Pradesh [1981 (3)

SCC 132] applying the de facto doctrine in a case where the

appointment of a judge was found to be invalid, after

reference to various judgments and the observations of the

constitutional experts held:

"A judge, de facto, therefore, is one who is not a mere

intruder or usurper but one who holds office, under colour

of lawful authority, though his appointment is defective and

may later be found to be defective. Whatever be the defect

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of his title to the office, judgments pronounced by him and

acts done by him when he was clothed with the powers and

functions of the office, albeit unlawfully, have the same

efficacy as judgments pronounced and acts done by a judge de

jure. Such is the de factor doctrine, born of necessity and

public policy to prevent needless confusion and endless

mischief. There is yet another rule also based on public

policy. The defective appointment of a de facto judge may

be questioned directly in a proceeding to which he be a

party but it cannot be permitted to be questioned in a

litigation between two private litigants, a litigation which

is of no concern or consequence to the judge except as a

judge. Two litigants litigating their private titles cannot

be permitted to bring in issue and litigate upon the title

of a judge to his office. Otherwise so soon as a judge

pronounces a judgment a litigation may be commended for a

declaration that the judgment is void because the judge is

no judge. A judge's title to his office cannot be brought

into jeopardy in that fashion. Hence the rule against

collateral attack on validity of judicial appointments. To

question a judge's appointment in an appeal against his

judgment is, of course, such a collateral attack.

We do not agree with the submission of the learned

counsel that the de facto doctrine is subject to the

limitation that the defect in the title of the judge to the

office should not be one traceable to the violation of a

constitutional provision. The contravention of a

constitutional provision may invalidate an appointment but

we are not concerned with that. We are concerned with the

effect of the invalidation upon the acts done by the judge

whose appointment has been invalidated. The de facto

doctrine saves such acts. The de facto doctrine is not a

stranger to the Constitution or to the Parliament and the

Legislatures of the States. Article 71(2) of the

Constitution provides that acts done by the President or

Vice-President of India in the exercise and performance of

the powers and duties of his office shall not be invalidated

by reason of the election of a person as President or

Vice-President being declared void. So also Section 107(2)

of the Representation of the People Act, 1951 (43 of 1951)

provides that acts and proceedings in which a person has

participated as a member of Parliament or a member of the

legislature of a State shall not be invalidated by reason of

the election of such person being declared to be void.

There are innumerable other Parliamentary and State

legislative enactments which are replete with such

provisions. The twentieth amendment of the Constitution is

an instance where the de facto doctrine was applied by the

constituent body to remove any suspicion or taint of

illegality or invalidity that may be argued to have attached

itself to judgments, decrees, sentences or orders passed or

made by certain District Judges appointed before 1966,

otherwise than in accordance with the provision of Article

233 and Article 235 of the Constitution. The twentieth

amendment was the consequence of the decision of the Supreme

Court in Chandra Mohan v. State of U.P. [1967 (1) SCR 77],

that appointments of District Judges made otherwise than in

accordance with the provisions of Article 233 and 235 were

invalid. As such appointments had been made in many States,

in order to pre-empt mushroom litigation springing up all

over the country, it was apparently though desirable that

the precise position should be stated by the constituent

body by amending the Constitution. Shri Phadke, learned

counsel for the appellants, argued that the constituent body

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could not be imputed with the intention of making

superfluous amendments to the Constitution. Shri Phadke

invited us to say that it was a necessary inference from the

twentieth amendment of the Contitution that, but for the

amendment, the judgments, decrees, etc. of the District

Judges appointed otherwise than in accordance with the

provisions of Article 233 would be void. We do not think

that the inference suggested by Shri Phadke is a necessary

inference. It is true that as a general rule the Parliament

may be presumed not to make superfluous legislation. The

presumption is not a strong presumption and statutes are

full of provisions introduced because abundans cautela non

nocet (there is no harm in being cautious). When judicial

pronouncements have already declared the law on the subject,

the statutory reiteration of the law with reference to

particular case does not lead to the necessary inference

that the law declared by the judicial pronouncements was not

thought to apply to the particular cases but may also lead

to the inference that the statute-making body was mindful of

the real state of the law but was acting under the influence

of excessive caution and so to silence the voices of

doubting Thomases by declaring the law declared by judicial

pronouncements to be applicable also to the particular

cases. In Chandra Mohan case this Court had held that

appointments of District Judges made otherwise than in

accordance with Article 233 of the Constitution were

invalid. Such appointments had been made in Uttar Pradesh

and a few other States. Doubts had been cast upon the

validity of the judgments, decrees etc. pronounced by those

District Judges and large litigation had cropped up. It was

to clear those doubts and not to alter the law that the

twentieth amendment of the Constitution was made. This is

clear from the statements of Objects and Reasons appended to

the Bill which was passed as Constitution (20th Amendment)

Act, 1966. The statement said:

Amendments of District Judges in Uttar Pradesh and a few

other States have been rendered invalid and illegal by a

recent judgment of the Supreme Court on the ground that such

appointments were not made in accordance with the provisions

of Article 233 of the Constitution... As a result of these

judgments, a serious situation has arisen because doubt has

been thrown on the validity of the judgements, decrees,

orders and sentences passed or made by these District Judges

and a number of writ petitions and other cases have already

been filed challenging their validity. The functioning of

the District Courts in Uttar Pradesh has practically come to

a standstill. It is, therefore, urgently necessary to

validate the judgments, decrees, orders and sentences passed

or made heretofore by all such District Judges in those

States....".

This position of law was again reiterated in State of

U.P. vs. Rafiquddin [1988 (1) SLR 491=1987 Supp. SCC 401]

wherein it was held: "We have recorded findings that 21

unplaced candidates of 1970 examination were appointed to

the service illegally in breach of the Rules. We would,

however, like to add that even though their appointment was

not in accordance with the law but the judgment, and orders

passed by them are not rendered invalid. The unplaced

candidate are not usurpers of office, they were appointed by

the competent authority to the posts of munsifs with the

concurrence of the High Court, though they had not been

found suitable for appointment according to the norms fixed

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by the Public Service Commission. They have been working in

the judicial service during all these years and some of them

have been promoted also and they have performed their

functions and duties as de facto judicial officers. "A

person who is ineligible to judgeship, but who has

nevertheless been duly appointed and who exercise the powers

and duties of the office of a de facto judge, he acts

validly until he is properly removed." Judgment and orders

of a de factor judge cannot be challenged on the ground of

his ineligibility for appointment."

In view of this position of law the judgments rendered

by the court martial which have attained finality cannot be

permitted to be re- opened on the basis of law laid down in

this judgment. The proceedings of any court-martial, if

already challenged on this ground and are pending

adjudication in any court in the country would, however, be

not governed by the principles of 'de facto doctrine'. No

pending petition shall, however, be permitted to be amended

to incorporate the plea regarding the ineligibility and

disqualification of judge-advocate on the ground of

appointment being contrary to the mandate of Rule 40(2).

This would also not debar the Central Government or the

appropriate authority in passing fresh orders regarding

appointment of the fit persons as judge-advocate in pending

court-martials, if so required.

In the light of what has been stated hereinabove, the

appeal is dismissed with the observations and findings

noticed in the preceding paragraph and the judgment of the

Division Bench of the High Court is upheld. No costs.