# UNION OF INDIA AND ORS v. EX.FLT. LT. G.S. BAJWA

- **Citation:** [2003] 3 S.C.R. 1092
- **Court:** Supreme Court of India
- **Decided:** 2003-05-02
- **Case number:** Civil Appeal Nos. 10383 of 1996
- **Bench:** N. Santosh Hegde, B.P. Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-and-ors-v-ex-flt-lt-g-s-bajwa-19092
- **Pages:** 26

## Headnote

Service law:
Air Force Act, 19501Sections41(2) and 65/Rules 89, 100, 102, I JO, I I I
C and 125:
Air Force Officer-Dismissal ji-om service by the General Court Martial
on ground of disobedience/misconduct-Challenge to--Reversed by the High
Court directing reinstatement on ground of denial of opportunity to defendD Right lo defend vis-a-vis provisions in the Act restricting legal aid- Held:
Since Parliament/legislature could restrict/abrogate any fundamental right
by enacting a law under the provision of Article 33, such law could override
Articles 2 I and 22 oft he Constitution of India-In the absence of any provision
to provide legal assistance and as respondent was an Officer, his claim for
engaging an advocate of his choice al the State expense on ground of poverty!
E indigence not justified-Since respondent chose to defend himself and dispensed
with the services of 'ji-iend of the accused', he was not prejudiced in his
defence on account of State not providing him defence counsel-Constitution
of India, 1950; Articles 2 I, 22 and 33.
Court Martial Proceedings-Role of Judge Advocate-Held: Judge
F Advocate is not partisan, he neither holds a brief for !he prosecutor nor for
the defence-He ensures fair /rial/guide !he Court Martial with due care that
accused does no/ suffer because of his position as such.
Court Martial Proceedings-Examination of defence witnesses vis-a-vis
G relevancy of witnesses-Denial of opportunity to defend-Held: Since
respondent was charged/or disobedience, relevancy ofother colleagues/officers
as defence witnesses is doub1jitl-Hence not granling of sufficient time for
eliciting response ji-0111 such witnesses was justified and does not amount to
denial of opportunity to defend
H
1092
U.0.1. v. EX.FLT. LT. G.S. BAJWA
1093
Administrative Law:
Court Martial Proceedings-Non-supplying of copies of day to day
proceedings-Principles of Natural Justice-Held: Though respondent was
not entitled to a copy of day to day proceedings, he was not p1,evented from
inspecting the proceedings-Hence, principles of Natural .Justice not violatedA
Practice and Procedure.
B
Words and Phrases:
'Relevancy of witnesses', 'Judge Advocate' and 'ji-iend of accused'-
Meaning of
According to the respondent, an Air Force officer, he was harassed
by the authorities at the instance of the then Air Marshal. He was illegally
and improperly admitted in the hospital for psychiatric treatment. He was
also asked to undergo medical examination with a view to re-categorization
c
of his medical category but he did not obey the order as it was patently D
illegal. A Court Martial was ordered and he was charged and tried for
offences under Sections 41(2) and 65 of the Air Force Act. The General
Court Martial found him guilty and passed an order of dismissal from
service. Aggrieved, respondent filed a writ petition which was allowed by
the High Court directing his reinstatement and payment of back wages
mainly on the ground of denial of his fundamental rights in not permitting E
him to be represented by a counsel of his choice at the expense of the State.
It was contended for the appellant-Union of India that since under
Article 33 of the Constitution of India Parliament could modify/abrogate
the fundamental rights in its application to the members of Armed Forces;
and that in a Court Martial, the authorities were not required to provide F
a counsel at State expenses to the respondent.
On behalf of the respondent, it was submitted that since the power
to convene a Court Martial could not be delegated, the order convening
the Court Martial was unauthorised and illegal; that since the order G
direeting the respondent to undergo a medial examination for
categorisation of his medical category was illegal, he was not bound to obey
the same; and that he was not allowed to examine himself as a defence
witness.
Allowing the appeal, the Court
H
1094
SUPREME COURT REPORTS
[2003] 3 S.C.R.
A
HELD: I.I. The High Court neither itself noticed the provisions of
Ar

## Text

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A
UNION OF INDIA AND ORS.
v.
EX.FLT. LT. G.S. BAJWA
MAY 2, 2003
B
[N. SANTOSH HEGDE AND B.P. SINGH, JJ.]
Service law:
Air Force Act, 19501Sections41(2) and 65/Rules 89, 100, 102, I JO, I I I
C and 125:
Air Force Officer-Dismissal ji-om service by the General Court Martial
on ground of disobedience/misconduct-Challenge to--Reversed by the High
Court directing reinstatement on ground of denial of opportunity to defendD Right lo defend vis-a-vis provisions in the Act restricting legal aid- Held:
Since Parliament/legislature could restrict/abrogate any fundamental right
by enacting a law under the provision of Article 33, such law could override
Articles 2 I and 22 oft he Constitution of India-In the absence of any provision
to provide legal assistance and as respondent was an Officer, his claim for
engaging an advocate of his choice al the State expense on ground of poverty!
E indigence not justified-Since respondent chose to defend himself and dispensed
with the services of 'ji-iend of the accused', he was not prejudiced in his
defence on account of State not providing him defence counsel-Constitution
of India, 1950; Articles 2 I, 22 and 33.
Court Martial Proceedings-Role of Judge Advocate-Held: Judge
F Advocate is not partisan, he neither holds a brief for !he prosecutor nor for
the defence-He ensures fair /rial/guide !he Court Martial with due care that
accused does no/ suffer because of his position as such.
Court Martial Proceedings-Examination of defence witnesses vis-a-vis
G relevancy of witnesses-Denial of opportunity to defend-Held: Since
respondent was charged/or disobedience, relevancy ofother colleagues/officers
as defence witnesses is doub1jitl-Hence not granling of sufficient time for
eliciting response ji-0111 such witnesses was justified and does not amount to
denial of opportunity to defend
H
1092
U.0.1. v. EX.FLT. LT. G.S. BAJWA
1093
Administrative Law:
Court Martial Proceedings-Non-supplying of copies of day to day
proceedings-Principles of Natural Justice-Held: Though respondent was
not entitled to a copy of day to day proceedings, he was not p1,evented from
inspecting the proceedings-Hence, principles of Natural .Justice not violatedA
Practice and Procedure.
B
Words and Phrases:
'Relevancy of witnesses', 'Judge Advocate' and 'ji-iend of accused'-
Meaning of
According to the respondent, an Air Force officer, he was harassed
by the authorities at the instance of the then Air Marshal. He was illegally
and improperly admitted in the hospital for psychiatric treatment. He was
also asked to undergo medical examination with a view to re-categorization
c
of his medical category but he did not obey the order as it was patently D
illegal. A Court Martial was ordered and he was charged and tried for
offences under Sections 41(2) and 65 of the Air Force Act. The General
Court Martial found him guilty and passed an order of dismissal from
service. Aggrieved, respondent filed a writ petition which was allowed by
the High Court directing his reinstatement and payment of back wages
mainly on the ground of denial of his fundamental rights in not permitting E
him to be represented by a counsel of his choice at the expense of the State.
It was contended for the appellant-Union of India that since under
Article 33 of the Constitution of India Parliament could modify/abrogate
the fundamental rights in its application to the members of Armed Forces;
and that in a Court Martial, the authorities were not required to provide F
a counsel at State expenses to the respondent.
On behalf of the respondent, it was submitted that since the power
to convene a Court Martial could not be delegated, the order convening
the Court Martial was unauthorised and illegal; that since the order G
direeting the respondent to undergo a medial examination for
categorisation of his medical category was illegal, he was not bound to obey
the same; and that he was not allowed to examine himself as a defence
witness.
Allowing the appeal, the Court
H
1094
SUPREME COURT REPORTS
[2003] 3 S.C.R.
A
HELD: I.I. The High Court neither itself noticed the provisions of
Article 33 of the Constitution of India nor does it appear to have been
brought to its notice. The Parliament, in exercise of powers conferred by
Article 33 of the Constitution of India, can restrict or abrogate the
fundamental rights guaranteed under Part Ill of the Constitution in its
B application to the members of the armed forces. It follows that if any
provision of the Act or the Rules restricts or abrogates any right guaranteed
under Part Ill of the Constitution of India, such provision cannot be
challenged on the ground that it is violative of the fundamental right as
guaranteed under Part Ill. However, such restriction or abrogation is
dependent on Parliamentary legislation and only a law passed by virtue of
C Article 33 can override Articles 21 and 22 of the Constitution of India.
D
E
Hence, the provisions of the Air Force Act cannot be challenged on the
ground that !hey infringe the fundamental right guaranteed to the
respondent under Article 21 of the Constitution of India
11105-A-B-C-D; II 07-EI
Ram Sarup v. Union of India and Anr., AIR (1965) SC 247, followed.
LI. Col. Prithi Pal Singh Bedi v. Union oflndia and Ors., 1198213 SCC
140 and Delhi Police Non-Ga::etted Karmachari Sangh and Ors. v. Union of
India and Ors., 1198711 SCC 115, relied on.
1.2. The mere fact that the respondent wrote to the President of India
stating that he was not in a position to engage an Advocate at his own cost
was not sufficient to hold that he was unable to do so on account of poverty
or indigence, since he was an officer of the Indian Air Force and was
holding the rank of Flight Lieutenant. Besides, there being no provision
F under the Ad or the Rules to provide a defence counsel at State expense,
the respondent could not claim such a right de-hors the Act and the Rules
on the ground of Article 21 of the Constitution of India which stood
restricted by the Act. 11108-C-DI
.G
Suk Das v. Union Territo1y of Ar1111achal Pradesh, AIR (1986) SC 991,
distinguished.
1.3. The respondent 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
r f to have as his defending officer and whose services will be made available
I
..
U.0.1. v. EX.FLT. LT. G.S. BAJWA
1095
to him free of co.st. Upon a written request of the respondent the services A
of an officer with legal qualifications having substantial experience was
made available to him as "the friend of the accused" by the convening
authority. In spite of the options given to the respondent and in spite of
several adjournments, respondent did not engage a counsel at his own
expense. When the_defence case commenced, the respondent dispensed with B
the services of the "friend of the accused". In the facts and circumstances
of the case the provisions of the Act and the Rules were scrupulously
followed i_n the conduct of the Court Martial proceedings and since the
respondent chose to defend himself without seeking the help of the
defending officer or the 'friend of the accused', it does not lie in his mouth
to complain that he was prejudiced in his defence on account of the State C
not providing him defence counsel at State expense.
11109-E-F-G-H; II 10-AI
Union of India and Ors. v. Major A. Hussain, (199811 SCC 537, relied
on.
Major General lnderJit Kumar v. Union of India and Ors., (199719 SCC
I, distinguished.
D
Board of Trustees oft he Port of Bombay v. Dilipkumar Raghavendranath
Nadkarni and Ors., 1198311 SCC 124 and JK. Aggarwal v. Haryana Seeds
Development Corporation Ltd and Ors., 1199112 sec 283, held inapplicable. E
1.4. The High Court proceeded on the wrong assumption that the
Judge Advocate was there to assist the prosecution and he along with the
prosecutor constituted a team against which it pitted the hapless accused
in the trial in Court Martial proceeding. It completely misdirected itself
and laboured under a complete mis-conception of the duties and the role F
of the Judge Advocate. The powers and duties laid down under the Act
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 G
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 H
1096
SUPREME COURT REPORTS
[2003] 3 S.C.R.
A and justice according to law. The duties with which he is charged and the
impartiality expected of 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. Even the Judge Advocate is administered an oath/
affirmation before he enters upon his office. He is bound by his oath to
B 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. Thus
C the impartiality of the Judge Advocate is ensured. The High Court
erroneously held that the procedural safeguards under th.e 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. 11110-E-F; 1111-C-D-E-F-G-HI
1.5. When the charge against the respondent was for disobeying the
D order of his superior officer, examination of the colleague Officers/Chief
of the Air staff as defence witnesses was not relevant. 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 to elicit response of the witnesses and thereafter he
would decide whether to examine them before the Court Martial as his
E witnesses. This depicts the peculiar approach of the respondent. 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. Under the circumstances, the
finding of the High Court that the Court Martial denied reasonable
F opportunity to the respondent to examine the defence witnesses, is wholly
unsustainable. 11112-D-E-F-G-HI
1.6. The practice of seeking unnecessary adjournments has become
rampant with the resultant delay in disposal of matters before adjudicatory
authorities and the courts. This practice has been deprecated by this Court.
G Hence no illegality was committed by the Court Martial either in calling
upon the respondent to explain the relevancy of the witnesses or in refusing
a long adjournment sought by the respondent. Though the respondent was
not entitled to a copy of the proceedings day to day as claimed by him, the
proceedings may be inspected by him at all reasonable times before the
H Court is closed to consider the finding. Nothing, therefore, prevented the
..
'
•
-
U.0.1. v. EX.FLT.LT. G.S. BAJWA
1097
responMnt from inspecting the proceedings and preparing his defence. A
Thus, giving to the respondent an opportunity to go through the
proceedings and for this purpose to inspect the same at all reasonable times
meets the requirement of principles of natural justice.
11114-B, D; It 14-D-El
Union of India and Ors. v. Major A. Hussain, 1199811 SCC 537, relied B
on.
1.7. 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 C
more than one typist. There was 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. Besides, no specific instance was pointed out to substantiate
this charge. 11115-E-FJ
1.8. The order for convening the General Court Martial was approved
by Air Marshal in the capacity of Air Officer In-charge Personnel (A.O.P.).
Hence the convening order was authorized and legal. [1116-DI
D
1.9. In the absence of any material on record the contention of the
respondent that the appellant was bound by the oral undertaking given E
before the High Court not to proceed with the medical board holds no
ground. In any event, even if it is accepted that an oral undertaking was
given, it was only to the effect that no medical board would be held till a
certain stipulated date. There was no undertaking given thereafter.
11116-GI F
1.10. No proceeding was brought to the notice of this Court wherein
it was recorded that the respondent shall not be allowed to be examined
as a defence witness. On the contrary, it appears from the extract of
proceedings of the Court Martial that the respondent himself had
confirmed that he had no witnesses to examine in his defence. 11117-B-El G
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 10383 of
1996.
From the Judgment and Order dated 3.8.1995 of the Delhi High Court
in C.W.P. No. 245 of 1986.
H
1098
SUPREME COURT REPORTS
[2003] 3 S.C.R.
A
Raju Ramchandran, Additioiial Solicitor General, Yipin Sanghi, Brijesh
B
Kumar and Mrs. Anil Katiyar for the Appellant.
S.K. Bhattacharya (AC) for the Respondent.
The Judgment of the Court was delivered by
B.P. SINGH, J. The Union of India has preferred this appeal by special
leave against the judgment and order of the High Court of Delhi dated August
3, 1995 in Civil Writ Petition No. 245 of 1986 whereby the High Comt
allowed the writ petition filed by the respondent herein and while setting
aside the order of dismissal passed by the Court Martial after trial, directed
C his reinstatement in the same post which he held when he was dismissed, but
made his continuation in the same post subject to medical fitness. It also
directed payment of 50% of the back wages to the respondent from the date
of dismissal till the date of the judgment.
The case of the respondent in the writ petition was that he was
D commissioned in the Indian Air Force on 27th June, 1970 and was appointed
to the substantive post of Flight Lieutenant on 27th June, 1976. In the year
1976 he was posted at Udhampur. In the course of his duties he found certain
irregularities in the matter of transportation of explosives, which were being
transported piecemeal at higher rates. He, therefore, brought this to the notice
E of the authorities and pointed out that Air Marshal Dilbagh Singh had passed
orders, which were beyond his jurisdiction and financial powers resulting in
loss to the Union of India. He claimed that on account of his alertness and
fearlessness in pointing out these irregularities, the Union of India saved a
considerable amount. However, by this act of his he incurred the wrath of Air
Marshal Dilbagh Singh who instructed his subordinate officers to "fix" him.
F He was illegally and improperly admitted in the Psychiatric Ward between
June 15, 1979 and July I 0, 1979 and thereafter between August 22, 1979 and
October 19, 1979.
The case of the respondent was that on June 18, 1982 Wing Commander
S.L. Gupta directed him to undergo an examination by the Medical Board on
G June 21, 1982 with a view to his recategorisation of last medical category.
This order was patently illegal and, therefore, the respondent did not obey the
order. On account of his disobedience of the order passed by the Wing
Commander, a General Coult Martial was ordered to try him on the charge
of disobeying the lawful command given by his superior officer and also for
H improper conduct prejudicial to the good order and Air Force discipline.
-
U.0.1. v. EX.FLT. LT. G.S. BAJWA [13.P. SINGH. J.]
] 099
Accordingly the respondent was charged of offences punishable under sections A
41 (2) and 65 of the Air Force Act, 1950 (hereinafter referred to as 'the Act').
According to the respondent the proceedings before the General Cou11 Martial
were conducted illegally and improperly and in breach of law inasmuch as
the respondent was denied leg~I assistance in the Court Martial proceedings
even though he was charged Of a serious offence which, on proof, entailed B
a sentence of imprisonment for a term which could extend to 14 years under
section 41 (2) and 7 years under Section 65 of the Act. Moreover he was
denied copies of the day to day proceedings which were essential for his
defence. I-le was also denied a fair oppo1tunity to examine witnesses in defence.
The General Court Martial proceeded to try the respondent and ultimately
found him guilty by its verdict pronounced on June 21, 1983. The General C
Court Martial imposed the sentence of dismissal from service. The appeal
preferred by the respondent to the Central Government was dismissed on
January 14, 1985 which compelled him to file the writ petition challenging
the Court Martial proceedings and praying for a declaration that the order
passed by the General Court Martial was null and void.I-le also prayed for all D
consequential benefits including compensation for illegal detention in
Psychiatric Ward and for his illegal arrest on June 21, 1983.
The Union of India controvc11ed the allegations made in the writ petition
and at the threshold took the objection that the question regarding his illegal
confinement in Psychiatric Ward and his illegal arrest were barred by the E
principle of constructive res judicata as he had moved several writ petitions
and special leave petitions earlier raising those contentions but had failed in
each one of them. It was submitted that the General Court Martial conducted
the proceedings in accordance with law and there was no breach of a statutory
provision or breach of principle of natural justice. The order of Wing
Commander S.L. Gupta was a lawful order and its disobedience by the F
respondent attracted the provisions of section 41 of the Act which made it an
offence punishable with a term of imprisonment which may extend to 14
years.
The High Court rejected the contention of the respondent that the order
passed by Wing Commander was an illegal order and that its disobedience
did not amount to a disobedience of a lawful order for purposes of section
41 of the Act. Relying upon the judgment of this Court in Ranjit Thakur v.
Union of India, [ 1987) 4 SCC 611 it was held that the said order of Wing
Commander Gupta was not an illegal order and that order had been issued
G
bona fide and in public interest.
H
1100
SUPREME COURT REPORTS
[2003] 3 S.C.R.
A
The High Court also rejected the contention of the respondent that the
orders directing him to appear before the Medical Board, as well as the trial
before the General Court Martial, were mala fide acts committed at the instance
of Air Marshal Dilbagh Singh. It noticed that it was sometime in the year
1976 that the respondent claimed to have exposed some mal practice which
B cast a reflection on Air Marshal Dilbagh Singh. The General Court Martial
proceedings were initiated in the year 1983. The submission, that the action
was malafide, was therefore, far fetched. Moreover Air Marshal Dilbagh
Singh against whom mala fide was alleged was not even a party in the writ
petition. The submission was, therefore, rejected.
C
The High Court then proceeded to consider the submission urged before
it that an illegality had been committed in as much as the petitioner was
deprived of his fundamental right by not being permitted to be represented
by a counsel of his choice at State expense in the Court Martial proceedings.
The High Court observed in this regard that it is a fundamental right of an
Indian citizen to have assistance of a legal expert when he is to face a trial
D for an offence punishable with imprisonment, as his personal liberty is at
stake. If such ah accused was not in a position to engage an advocate at his
own cost, then it becomes the fundamental duty of the State to provide him
legal assistance at the cost of the State. Reliance was placed on the judgment
of this Court in Suk Das v. Union Territory of Arunachal Pradesh, AIR
E (I 986) SC 991 to support the view that the accused has a fundamental right
under Article 2 I of the Constitution of India to obtain free legal service at
the cost of the State, if he is unable to engage the services of a lawyer on
account of poverty or indigence. The High Court noticed that in the instant
case as soon as the respondent was intimated about the constitution of General
Court Martial to try him he made an application to the President of India on
F May 2, 1983 bringing to his notice his inability to engage an advocate at his
own cost and requested that he may be provided funds for engaging an
advocate to defend him in the said General Court Martial. A copy of this
application was also given to the General Court Martial. Moreover, since the
respondent apprehended that the other subordinate officers may not be in a
G position to give him proper and necessary assistance in defending him on
account of their fear of Air Marshal Dilbagh Singh, his request to have an
advocate for defending him, in view of his apprehension, could not be said
to be unreasonable or improper.
The Union of India on the other hand contended that neither in the Air
H Force Rules nor in the Air Force Act is there has any provision to appoint
'·
U.0.1. v. EX.FLT. LT. G.S. BAJWA (B.P. SINGH. J.J
1101
a legal practitioner at State expense to defend the accused before a Court A
Martial and, therefore, such a request could not be granted. The Rules only
provide that an accused may be represented by any officer subject to Air
Force laws who shall be called the 'defending officer' or assisted by any
person whose services he may be able to procure who shall be called the
'friend of the accused'. The submission urged on behalf of the Union of India B
was rejected by the High Court on the reasoning that even if there was no
such provision in the Act or the Rules, the principles laid down by the
Supreme Court in the case of Suk Das (supra) were applicable and, therefore,
the respondent had a fundamental right under Article 21 of the Constitution
of India to be represented by a legal practitioner. Article 21 commanded that
no person shall be deprived of his personal liberty except in accordance with C
the procedure established by law and, therefore, it followed that when a
person was to be prosecuted, he must be afforded sufficient opportunity to
defend himself and, consequently, he must be given legal aid. Failure to.
provide such legal aid vitiated the trial and in these circumstances the trial
was not proper and legal.
D
The learned Judge further observed that Rule I 02 which provided for
an accused being represented by a defending officer or a friend of the accused
hardly satisfied the test of giving proper opportunity to the accused to defend
himself. The prosecution was conducted by a prosecutor before the General
Court Maitial and the Judge Advocate is appointed to assist the Court. The E
Judge Advocate is an officer belonging to the department of the Chief Legal
Adviser or an officer approved by the Chief Legal Adviser. The role of the
Judge Advocate is to explain to the Court the legal provisions in order to
assist the Court to come to the right conclusion. Thereafter the High Court
observed :-
" ....... In the instant case there was a prosecutor for the prosecution
and the Judge Advocate was also appointed. The Judge Advocate
always represents the Chief Legal Advisor in a Court Martial as per
the provisions of Section 111. Thus, the prosecution had the aid of
F
a prosecutor as well as a Judge Advocate whereas in the instant case
though the petitioner was insisting to have appointment of a Civil G
Advocate, the same was not appointed. No doubt initially a Defending
Officer was helping the petitioner but he had also withdrawn in the
midst of the trial. But merely because the petitioner was given the
assistance of the Defending Officer, it could not be said that the
petitioner and the prosecution were in equal position. In view of the H
A
1102
SUPREME COURT REPORTS
12003] 3 S.C.R.
present (sic) of the prosecutor and the assistance of Judae Advocate
"'
'
the non-appointment of a Civil Advocate for the petitioner has put
the petitioner in an unequal position."
The High Court, therefore, held that the denial of petitioner's request
for being represented by an advocate resulted in miscarriage of justice,
B particularly in a case where the prosecution itself alleged that the accused
was suffering psychologically to some extent. Refusal of any legal aid from
a legal expect or a person having expertise in law to such an accused amounted
to miscarriage of justice. The High Court was of the view that the respondent
was handicapped in conducting his defence which was obvious from the fact
C that when he was required to cross-examine the witnesses he requested the
Court Martial to grant him time so that he could consult his advocate in this
regard. For the same reason the respondent could not explain to the Court
Martial the relevancy of the witnesses whom he wished to summon. He
apprehended that he may disclose his defence if he attempted to explain the
relevancy of the concerned witnesses and that would cause serious prejudice
D to him in the trial.
It was pointed out by the Union of India before the High Court that in
his application to the President of India, the respondent has asked for
appointment of the two advocates named therein. An accused cannot insist on
having an advocate of his choice to defend him at State expense. The High
E Court observed that even if an Advocate of his choice could not be given, the
State was bound to provide him legal assistance and this could be done if a
panel of advocates was prepared by the State and the respondent was called
upon to make his selection. The High Court, therefore, concluded that the
non-appointment of an advocate to defend the accused resulted in miscarriage
F of justice and, therefore, the trial of the petitioner stood vitiated.
Another grievance of the respondent was that he had given two lists of
witnesses, the first consisting of 24 names and the second of 7 names. But
when he requested the General Court Martial to summon those witnesses the
Judge Advocate advised the General Court Martial that the respondent should
G be asked to explain the relevancy of those witnesses and accordingly the
respondent was called upon to disclose the relevancy of each witness and on
what point he wished to examine him. The High Court held that technically
as well as legally the direction of the Court Martial was proper and correct,
but the Court Martial ought not to have acted too technically since the
respondent was not in a position to state the relevancy of the witnesses
H without disclosing his defence and, therefore, apprehended that he while
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1103
attempting to disclose the relevancy of witnesses may disclose his defence to A
his prejudice.
The High Court noticed that the respondent, when called upon to explain
the relevancy of the witnesses, ~lated that he would write letters to the witnesses
who were out of Delhi. They were officers of the Indian Air Force, some of
them retired and some of them in service. Only after getting their replies, he B
could state their relevancy to the Court and also whether he wanted to examine
any of them. He sought an adjournment on June 3, 1983 and prayed that the
matter be adjourned till June 17, 1983. However, he was granted an
adjournment only for 4 days. The High Court observed that it failed to
understand how the General Court Martial expected that the respondent would C
be in a position to contact witnesses residing at Bombay, Bangalore etc. and
get their replies in 4 days. Thus by adjourning the hearing on June 3, 1983
to June 7, 1983 the General Court Martial denied reasonable opportunity to
the respondent to examine his defence witnesses.
The High Court then considered the complaint of the respondent that D
he was not supplied copies of the proceedings taking place every day despite
his repeated requests. The non supply of copies of evidence and proceedings
amounted to denial of reasonable opportunity to the accused to defend himself
and was also against the principles of natural justice. The High Comt accepting
the submission held that the denial of copies of the evidence and proceedings
recorded every day, to the petitioner also resulted in denying reasonable E
opportunity to him to defend.
Lastly the High Court considered the grievance of the respondent that
F
the prosecutor, the Judge Advocate and the members of the General Court
Martial met behind close doors and changed the recorded proceedings and
evidence after careful editing. Portions favourable to the respondent were
removed and the depositions were changed to suit the prosecution and the
original statements destroyed. The High Court examined portions of the typed
record. of proceedings produced by the petitioner and found that on the same
date some portion of the statement of the Judge Advocate as well as the
witnesses were typed on different typewriters. The High Court also noticed G
that the evidence of witnesses was recorded by the Comt in long hand and
it was not dictated directly to the typists and the statements were subsequently
typed by the typists. Even the signatures of the witnesses were not taken nor
did the signatures of the Court appear on those documents. The High Court,
thereafter concluded :-
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[2003) 3 S.C.R.
" ....... Therefore, in these circumstances: the procedure followed by
the Court in conducting the trial in question is also not proper as the
original statements of the witnesses recorded by the Court in its own
hand in the open court are not preserved and when the petitioner is
alleging that there was tempering with the evidence recorded, it has
become very difficult for us to come to a conclusion that the allegations
made by the petitioner are baseless or false in the absence of the
original record."
In view of these findings the High Court held that the trial of the
petitioner was vitiated and consequently the punishment awarded to him was
C set aside.
Shri Raju Ramachandran, learned Additional Solicitor General appearing
on behalf of the appellant-Union of India assailed the judgment of the High
Court and submitted that the finding recorded by the High Court that the
failure of the appellant to provide a counsel to the respondent at State expense
D resulted in breach of the fundamental right of the respondent guaranteed
under Article 21 of the Constitution of India, was recorded by the High Court
in ignorance of the provisions of Article 33 of the Constitution of India
which expressly empowers the Parliament to modify the rights conferred by
Part Ill of the Constitution in their application to the members of the armed
forces. The High Court was, therefore, in error in not considering the provisions
E of the Act, as a law made by Parliament under Article 33 of the Constitution
of India modifying and restricting the right conferred by Article 21 of the
Constitution of India. In a Court Martial trial the appellant was not required
to provide a counsel at State expense to the respondent, whose rights were
governed by the provisions of the Act and the Rules. They provided that the
F appellant may be represented by an officer called "the defending officer" or
assisted by any person whose services he may be able to procure who shall
be called "the friend of the accused" . The respondent was in fact permitted
to engage a counsel at his own expense but he failed to do so. Even the friend
of the accused, had to withdraw at the request of the respondent. The
respondent cannot be, therefore, heard to say that prejudice was caused to
G him on account of non-compliance of any of the provisions of the Act or the
Rules. He further submitted that in recording a finding that the respondent
and the prosecution were not equally placed in the proceedings before the
Court' Martial, the High Court completely misunderstood the duties of the
Judge Advocate and the role played by him in proceeding before the Court
H Martial. He also assailed the other findings recorded by the High Court.
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U.0.1. v. EX.FLT. LT. G.S. BAJWA jB.P. SINGH . .I.]
1105
Learned counsel appearing on beha~f of the respondent submitted that A
the findings recorded by the H_igh Court are unassailable and he urged further
grounds, which were not urged before the High Court, to support the
conclusion reached by the High Court .
It is indeed surprising that while considering the submissions urged on
behalf of the respondent alleging the breach of his fundamental right under B
Article 21 of the Constitution of India, the High Court neither noticed the
provisions of Article 33 of the Constitution of India nor does it appear to
have been brought to its notice. 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 Ill of the Constitution, in their application, inter alia, C
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 Ill of the Constitution in their application to th.e
members of the armed forces. 11, therefore, follows that if any provision of D
the Act or the Rules restricts or abrogates any right guaranteed under Part 111
of the Constitution of India, it cannot be challenged on the ground that it is
violative of the fundamental right as guaranteed under Part Ill. 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 E
22 of the Constitution of India. The law on the subject is fairly well settled
and we may only refer to some of the authorities on the subject. In Ram
Sarup v. Union of India and Anr., AIR ( 1965) SC 247 a Constitution Bench
of this Court upholding the submission urged by the Learned Attorney General
observed :-
"The learned 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 provisions of any of the articles in Part Ill of the
Constitution, it must be taken that to the extent of the inconsistency
Parliament had modified the fundamental rights under those articles
F
in their application to the person subject to that Act. Any such G
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 affect the fundamental right under
Part Ill of the Constitution, that provision does not, on that account,
become void, as it must be taken that Parliament has thereby, in the H
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[2003] 3 S.C.R.
exercise of its power under Art. 33 of the Constitution, made the
requisite modification to affect the respective fundamental right. We
are however of opinion that the provisions of S. 125 of the Act are
not discriminatory and do not infringe the provisions of Art. 14 of the
Constitution. It is not disputed that the persons to whom the provisions
of S. 125 apply do form a distinct class. They apply to all those
persons who are subject to Act and such persons are specified in S.
2 of the Act."
In Lt. Col. Prithi Pal Singh Bedi v. Union of India and Ors., [ 1982) 3
SCC 140 this Court observed :-
C
"Article 33 confers power on the Parliament to determine to what
extent any of the rights conferred by Part Ill shall, in their application
to the members of the Armed Forces, be restricted or abrogated so as
to ensure the proper discharge of duties and maintenance of discipline
amongst them. Article 33 does not obligate that Parliament must
D
specifically adumbrate each fundamental right enshrined in Part Ill
and to specify in the law enacted in exercise of the power conferred
by Article 33 the degree of restriction or total abrogation of each
right. That would be reading into Article 33 a requirement which it
does not enjoin. In fact, after the Constitution came into force, the
power to legislate in respect of any item must be referable to an entry
E
in the relevant list. Entry 2 in List I : Naval, Military and Air Forces;
any other Armed Forces of the Union, would enable Parliament to
enact the Army Act and armed with this power the Act was enacted
in July 1950. It has to be enacted by the Parliament subject to the
requirements of Part Ill of the Constitution read with Article 33 which
F
itself forms part of Part 111. Therefore, every provision of the Army
Act enacted by the Parliament, if in conflict with the fundamental
rights conferred by Part Ill, shall have to be read subject to Article
33 as being enacted with a view to either restricting or abrogating
other fundamental rights to the extent of inconsistency or repugnancy
between Part Ill of the Constitution and the Army Act".
G
This Court referred to the observations in Ram Sarup (supra) and held
that the question was no longer res integra in view of the decision of the
Constitution Bench. The Court, therefore, rejected the submission that the
law which prescribed procedure for trial of offences by Court Martial must
satisfy the requirement of Article 21 because to the extent the procedure is
H prescribed by law and if it stands in derogation of Article 21, to that extent
U.0.1. v. EX.FLT. LT. G.S. BAJWA [B.P. SINGH. J.]
J 107
Article 21 in its application to the armed forced is modified by enactment of A
the procedure in the Army Act itself. The Court noticed that there operate
two conflicting public interests; the maintaining of discipline in the Armed
Forces to safeguard national security, to ensure enjoyment by the people of
India of their fundamental rights, and the right of members of Armed Forces
themselves to fundamental rights.
In Delhi Police Non-Gazetted Karmachari Sangh and Ors. v. Union of
India and Ors., [ 1987] 1 SCC 115 the challenge to the Act and the Rules
impugned therein was on the ground of infringement of fundamental right
guaranteed under A11icle 19(l)(c) read with Article 19(4) of the Constitution
B
of India. It was argued in that case that recognition of the Association carries C
with it the right to continue the Association as such. It is a right flowing from
the fact of recognition. To derecognise the association. in effect offends against
the freedom of association. This Court held :-
"That the Sangh and its members come within the ambit of Article 33
cannot be disputed. The provisions of the Act and Rules taking away D
or abridging the freedom of association have been made strictly in
conformity with Artie.le 33. The right under Article 19(l)(c) is not
absolute.