2003 Supreme(SC) 546

2003(4) Supreme 96
Supreme Court of India
(From Delhi High Court)
N. Santosh Hegde & B.P. Singh, JJ.
Union of India & Ors. —Appellants
versus
Ex. Flt. Lt. G.S. Bajwa —Respondent
Civil Appeal No. 10383 of 1996
Decided on 2-5-2003
Counsel for the Parties :
For the Appellants : Raju Ramachandran, Additional Solicitor General, Vipin Sanghi, Brijesh Kumar and Mrs. Anil Katiyar, Advocates.­
For the Respondent : S.K. Bhattacharya, Advocate­ (A.C.).

Important point
The provisions of the Air Force Act cannot be challenged on the ground that they infringe the fundamental rights guaranteed to the accused under Article 21 of the Constitution of India.

Headnote:(i) Constitution of India—Articles 21 and 33—Air Force Act, 1950—Court Martial—Plea of breach of fundamental rights—Restriction or abrogation of fundamental rights in their application to members of armed forces—Whether permissible—(Yes)—A law passed by virtue of Article 33 can override Articles 21 and 22 of the Constitution—Provisions of the Air Force Act cannot be challenged on ground that they infringe fundamental rights guaranteed under Part III of the Constitution.

       Held : Article 33 of the Constitution of India expressly empowers the Parliament to determine by law the extent to which any of the rights conferred by Part III of the Constitution, in their application, inter alia, to the members of the armed forces, shall be restricted or abrogated to ensure the proper discharge of their duties and the maintenance of discipline among them. The Parliament can, therefore, in exercise of powers conferred by Article 33 of the Constitution of India restrict or abrogate the fundamental rights guaranteed under Part III of the Constitution in their application to the members of the armed forces. It, therefore, follows that if any provision of the Act or the Rules restricts or abrogates any right guaranteed under Part III of the Constitution of India, it cannot be challenged on the ground that it is violative of the fundamental right as guaranteed under Part III. It is no doubt true that the restriction or abrogation is dependent on Parliamentary legislation and only a law passed by virtue of Article 33 can override Articles 21 and 22 of the Constitution of India. The law on the subject is fairly well settled.­ (Para 19)

       The provisions of the Act cannot be challenged on the ground that they infringe the fundamental right guaranteed to the respondent under Article 21 of the Constitution of India. Since the Air Force Act is a law duly enacted by Parliament in exercise of its plenary legislative jurisdiction read with 33 of the Constitution of India, the same cannot be held to be invalid merely because it has the effect of restricting or abrogating the right guaranteed under Article 21 of the Constitution of India or for that reason under any of the provisions of Chapter III of the Constitution. (Paras 23)

       (ii) Air Force Act, 1950—Air Force Rules, 1969—Court Martial—Right to obtain free legal service at the cost of State—Whether available under the Act—(No)—There being no provision under the Act or Rules to provide a defence counsel at State expense—Respondent could not claim such a right dehors the Act and Rules on ground of breach of fundamental right under Article 21 of the Constitution. (Paras 24 and 25)

       (iii) Air Force Act, 1950—Air Force Rules 1969—Court Martial—Charge of disobedience—Court Martial permitted respondent to engage a counsel at his own expense—However, he did not engage a defence counsel of his choice at his own expense—Claim of respondent to engage a defence counsel of his choice not maintainable—Respondent having no such right under the Act—Respondent does not even have a right to claim an advance from the State for engaging a counsel at his own expense.

       Held : So far as the facts of this case are concerned it is clear from the record that the respondent was informed that he was not entitled to a civil defence counsel of his choice at State expense but he was given the option of engaging a civil counsel of his choice under own arrangement and at his own expense. He was also informed that he could give the name of any service officer whom he wished to have as his defending officer and whose services will be made available to him free of cost. Upon a written request of the respondent the services of Sqn. Leader V.K. Sawhney, an officer with legal qualifications having substantial experience as a defending officer in trial by Court Martial was made available to him as "the friend of the accused" by the convening authority. The ­respondent was also advised that he could ­accept the services of the said officer as his defending officer, if he so desired. Inspite of the options given to the respondent and inspite of several adjournments, the respondent did not engage a counsel at his own expense. When the defence case commenced, the respondent dispensed with the services of the "friend of the accused", whose services he had asked for in writing. We are, therefore, satisfied in the facts and circumstances of the case that the provisions of the Act and the Rules were scrupulously followed in the conduct of the Court Martial proceedings and the respondent chose to defend himself without seeking the help of the defending officer or the friend of the accused. It, therefore, does not lie in his mouth to complain that he was prejudiced in his defence on account of the State not providing him defence counsel at State expense. The finding recorded by the High Court is, therefore, wholly unsustainable. (Paras 28 and 29)

       (iv) Air Force Act, 1950—Air Force Rules 1969—Rules 102, 110 and 111 —Court Martial—Judge Advocate—Duties and role of—He must guide Court Martial when questions of law arise and render his honest opinion—He is neither a friend of prosecutor nor an adversary of defence.

       Held : Rule 111, therefore, which lays down the powers and duties of the Judge Advocate leaves no room for doubt that though a participant in the proceeding, he is not partisan. He holds a brief neither for the prosecutor nor for the defence. He must guide the Court Martial when questions of law arise and render his honest opinion regardless of the consideration whether it helps the prosecution or the defence. He is neither a friend of the prosecutor nor an adversary of the defence. He has to maintain an entirely impartial position charged with the duty of taking care that the accused does not suffer any disadvantage in consequence of his position as such. The Judge Advocate performs a solemn obligation to advise honestly and to guide dispassionately the Court Martial with the objective to ensure a fair trial and justice according to law. The duties with which he is charged and the impartiality expected by him must assure the person being tried that he shall not suffer any disadvantage on account of his position as such and that whenever necessary intervention by Judge Advocate shall ensure even handed justice. We, therefore, do not agree with the conclusion reached by the High Court that the procedural safeguards under the Act do not provide a level playing field and that the dice is heavily loaded against the accused in a trial before the Court Martial. We cannot lose sight of the fact that even the Judge Advocate is administered an oath/affirmation before he enters upon his office. He is bound by his oath to carry out the duties of his office in accordance with the Act and the Rules without partiality, favour or affection and not on any account, at any time, whatsoever, disclose or discover the vote or opinion on any matter of any particular member of the Court Martial, unless required to give evidence thereof by a court of justice or a Court Martial in due course of law. The impartiality of the Judge Advocate, is thus, ensured and it can never be contended that in the scheme of the Act and the Rules the role of the Judge Advocate is only to assist the prosecutor to secure the conviction of the accused. (Para 32)

       (v) Air Force Act, 1950—Air Force Rules 1969—Rule 89—Court Martial—Relevancy of witnesses—Flight Lieutenant—Charge of disobeying order of his superior officer by not complying with direction to submit himself to a medical examination by the Board—Delaying tactics on part of respondent during Court Martial proceedings—Court Martial would have been justified in rejecting prayer for adjournment for calling witnesses.

       Held : One fails to understand what possibly could be the relevancy of these witnesses when the charge against the respondent was that he had disobeyed the order of his superior officer by not complying with the ­direction to submit himself to a medical examination by the Board. To us it appears that the request was not even bona fide and was a mere delaying tactics. This apprehension appears to be justified in view of the fact that the respondent asked for adjournment of the case by 14 days. The purpose for which adjournment was sought was that he would be writing to the witnesses concerned and only after getting their response he would decide whether to examine them before the Court Martial as his witnesses. This depicts the peculiar approach of the respondent. He prayed for an adjournment not on the ground that there was some difficulty in producing these witnesses on a particular day, but on the ground that he had not communicated with them and only after communicating with them and getting their response, he would be in a position to tell the Court whether he would examine them and if so, which of them, as his witnesses. On such a ground, the Court Martial would have been justified in rejecting the prayer but the Court Martial granted him 4 days time and accordingly adjourned the proceedings at his request. The High Court has found fault with the Court Martial in not giving to the respondent sufficient time to get replies from the witnesses. It has gone to the extent of holding that the Court Martial denied reasonable opportunity to the respondent to examine his defence witnesses. We are of the view that this finding is wholly unsustainable. (Para 33)

       Rule 89 of the Rules provides that when a court is once assembled and the accused had been arraigned, the court shall, subject to the provisions of Rule 88, continue the trial from day to day unless it appears to the court that an adjournment is necessary for the ends of justice, or that such continuance is impracticable. The normal rule, therefore, is that the trial must continue from day to day and this is with a view to expeditious disposal of the matter before the Court Martial. Unfortunately the practice of seeking unnecessary adjournments has become rampant with the resultant delay in disposal of matters before adjudicatory authorities and the courts. (Para 34)

       We, therefore, hold that no illegality was committed either in calling upon the respondent to explain the relevancy of the witnesses or in refusing a long adjournment, on the request of the respondent. (Para 35)

       (vi) Air Force Act, 1950—Air Force Rules 1969—Rules 125 and 100—Court Martial—Right of person tried to copies of proceedings—Claim to supply copies of proceedings every day—Whether maintainable—(No)—Requirement to supply copies of proceedings at any time after confirmation of finding and sentence and before the proceedings are destroyed.

       Held : There is a specific provision in the Rules which provides for copies of the proceedings to the person tried by the Court Martial free of cost at any time after the confirmation of the finding and sentence and before the proceedings are destroyed. Clearly, therefore, the respondent was not entitled to a copy of the proceedings day to day as claimed by him. However, Rule 100 in terms provides that the proceedings may be inspected by the accused at all reasonable times before the court is closed to consider the finding. Nothing, therefore, prevented the respondent from inspecting the proceedings and preparing his defence. Rule 100 itself incorporates the principle of natural justice by giving to the respondent an opportunity to go through the proceedings and for this purpose to inspect the same at all reasonable times. This meets the requirement of principles of natural justice and the respondent cannot complain on the ground that he was not given a copy of the proceedings day to day. The High Court was, therefore, clearly wrong in coming to the conclusion that the principles of natural justice were violated by non supply of copies of proceedings day to day. (Para 40)

       (vii) Air Force Act, 1950—Air Force Rules, 1969—Court Martial proceedings—Allegations of tampering of record of proceedings—Not proved.

       Held : Allegation of the respondent which was considered by the High Court was to the effect that the Judge Advocate, the Prosecutor and the Court Martial were meeting in closed chamber and then the original depositions were being changed to favour the prosecution and after removing portions favourable to the respondent, the statements of witnesses were being re-typed and original statements were destroyed. The High Court observed that the Court was recording the proceedings in long hand and thereafter it was being typed. Some pages of such typed record showed that some portions of the submissions of the Judge Advocate as well as the witnesses were typed on different typewriters. From this the High Court jumped to the conclusion that the procedure followed by the Court in conducting the trial was not proper as the original statements of the witnesses recorded by the Court in its own hand in the open Court were not preserved and the respondent s allegation that records were tampered with could not be said to be baseless or false. The respondent relied upon an affidavit filed before the High Court by one Shri H.S. Siddhu who attended the Court Martial proceeding and stated that once he visited the room next to the Court Martial Room and he found typists typing Court Martial records. He found that the proceedings made by the Judge Advocate in manuscript were being typed by one of the typists. The said manuscript had several amendments made in red ink and even a whole para had been redrafted. Thereafter the respondent had requested the Court Martial to obtain his signatures on each and every page of the manuscript proceedings on each day and to give him a copy of the proceedings at the end of the day but that request was refused. The respondent has not filed any affidavit of his own but has chosen to file an affidavit of a former officer, which also does not clearly establish that the records were being tampered with. Obviously when the Judge Advocate records proceedings in long hand, the same has to be given a final shape before it becomes a part of the record. That cannot be said to be tampering with the record. Moreover the mere fact that copies of the proceedings were typed on two different ­typewriters does not necessarily lead to the conclusion that the evidence was changed or the record was tampered. Very often, with a view to quick disposal of work, the material to be typed may be distributed to more than one typist. We, therefore, find no force in the submission that the members of the Court Martial, the Judge Advocate and the Prosecutor tampered the record of proceedings with a view to prejudice the case of the ­respondent. No specific instance was pointed out to us to substantiate this charge. (Para 41)

       (viii) Air Force Act, 1950—Air Force Rules 1969—Court Martial—­Order for convening General Court Martial approved by Air Marshall D.A. Lafotaine, AOP—Convening order held legal. (Para 44)