Fundamental Rights Of Armed Forces Cannot Be Curtailed Unless It Is Required To Ensure Proper Discharge Of Their Duties: J&K HC Declares Rule 129 Of BSF Rules Ultra Vires The Constitution

Justice Sanjeev Kumar observed that after a bare reading of the Rule it doesn't seem that it is aimed to ensure proper discharge of duties by the members of the Border Security Force and maintenance of discipline among them and, therefore, could be saved on the strength of Article 33 of the Constitution of India.

"For the foregoing reasons, challenge by the petitioner to Rule 129 of the Border Security Force Rules, 1969 succeeds and the impugned Rule is declared ultra vires part III of the Constitution, particularly Article 21 of the Constitution. Proceedings against the petitioner concluded by the General Security Force Court are quashed from the stage of leading defence evidence. The matter shall be taken up by the General Security Force Court from the stage of conclusion of the prosecution evidence. The petitioner shall be provided certified copies of the proceedings as also the copies of the statements of prosecution witnesses recorded during trial against or in favour of the petitioner before asking the petitioner to enter his defence." Court said

The petitioner was a BSF personnel who is facing criminal trial before the General Security Force Court was aggrieved and has challenged, orders dated 27th July, 2018 and 25th September, 2018 passed by the Chief Judicial Magistrate, Bandipora, whereby the charge-sheet presented against the petitioner before the Chief Judicial Magistrate has been transferred and handed over to the General Security Force Court constituted under the Border Security Force Act. The petitioner has also assailed the order of GSFC, whereby the application moved by the petitioner for issuance of certified copies of the proceedings including statement of prosecution witnesses has been rejected by relying upon Rule 129 of the Border Security Force Rules, 1969. Aggrieved by the same the petitioner has challenged the vires of Rule 129 of the Rules on the ground that it infringes fundamental right of fair trial guaranteed to the petitioner under the Constitution of India.

Before Court, the petitioner restricted his arguments only to the extent of seeking declaration that the Rule 129 of the Rules is inconsistent with part-III of the Constitution of India and that the denial of certified copies of the statements recorded during trial before the GSFC infringes his fair trial right guaranteed under Article 21 of the Constitution.

He argued that Section 87 of the Act read with Section 76 of the Evidence Act, 1872 confers a right on the petitioner to obtain certified copies of the public documents. And that statements of witnesses are public documents and, therefore, the respondents could not have rejected his application for certified copies of such statements by placing reliance on the impugned Rule.

Further he argued that Rule 129, impugned in this petition, violates the fair trial right guaranteed to the petitioner under Article 21 and 22 of the Constitution. He also argued that the impugned Rule takes away the right of the accused facing trial under the Act to obtain certified copies of the statements of the prosecution witnesses recorded by the GSFC till the findings and sentence is confirmed when such confirmation is required, is arbitrary and discriminatory. And therefore, he said it is ultra vires the constitution.

Central government Senior Counsel Nazir Ahmad Bhat argued that Rule 129 of the Rules framed under Sub Section 1 and 2 of Section 141 of the Act is saved by Article 33 of the Constitution of India. It was contended that in terms of Article 33 of the Constitution, the Parliament is conferred power to modify the fundamental rights contained in part-III of the Constitution in their application to the members of Armed Forces; or members of the forces charged with maintenance of public order; or the persons employed in any bureau or other organization established by the State for purposes of intelligence or counter intelligence etc etc.

He, therefore, argues that BSF Act and the Rules framed and particularly Rule 129 shall be deemed to have been made by law enacted by the Parliament. He, therefore, submitted that when it comes to the application of fundamental rights to the members of the Armed Forces or Forces charged with maintenance of public order, the Parliament is well within its power to restrict or curtail such fundamental rights by law and this is exactly what is done by the Parliament in terms of the impugned Rule.

He also argued that the BSF Act and the Rules framed there under is a special law enacted by the Parliament to provide for the constitution and regulation of the armed force of the Union for securing security of the borders of India and, therefore, overrides the general law i.e. Indian Evidence Act, 1872.

Therefore, he urged the Court to reject the plea of the petitioner and, accordingly, dismiss the petition.

With regard to the Trial the court observed that from a plain reading of Section 87 of the Act, it clearly transpires that general rules of evidence contained in the Indian Evidence Act shall, subject to the provisions of the Act, apply to all proceedings before the GSFC. That means any provision in the Act laying down and providing any Rule of evidence would override the contrary provisions in the Indian Evidence Act.

The Court applied the doctrine of Generalia Specialibus Non-Derogant and said that apart from the Act is a special enactment providing for constitution and regulation of an armed force of the Union for ensuring the security of the borders of India and other matters connected therewith and, therefore, the provisions of the Act would prevail over the general provisions of the Indian Evidence Act wherever there is found any repugnancy between the two.

Then the Court moved towards analysing section 76 of the Indian Evidence Act which enjoins a public officer having the custody of a public document, which any person has a right to inspect, with a duty to give that person, on demand, a certified copy thereof. Then the court analysed section 74 of the Act, that defined which documents are public documents.

"From a reading of Section 74 of the Evidence Act, it is clear that the documents forming the acts and records of the acts (i) of the sovereign authority, (ii) of official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive of any part of India or of the Commonwealth or of a foreign country including public records kept in any State of private documents. In terms of Section 106 of the Act, proceedings before the GSFC are judicial proceedings within the meaning of Sections 193 and 228 of the Indian Penal Code and the GSFC shall be deemed to be a Court within the meaning of Sections 480 and 482 of the Code of Criminal Procedure, 1898."

The Court noted that any court exercising judicial functions including the General Security Force Court would be public office for the purposes of Section 74 and, therefore, in terms of Section 76, such public officer presiding over the Court or Judicial Tribunal would be bound to provide certified copy of the public document, on demand, which any person has a right to inspect. Further the court said that in compliance to Section 76 of the Evidence Act any person, who has a right to inspect the Court proceedings is entitled to obtain certified copies of the documents/proceedings pending before a Court of law.

"On the same analogy, I am of the considered view that General Security Force Court convened under the Act would be obliged to act under Section 76 of the Indian Evidence Act subject of course to the contrary provision, if any, contained in the Act." Court said.

Coming to validity of Rule 129 of the Border security the court said that he is entitled to receive certified copies of the proceedings and the plea of the respondents that since the proceedings before the GSFC are in the nature of judicial proceedings, therefore, not a public document is without any substance and cannot be accepted in law.

"In view of the clear provisions of Rule 129, the accused is not entitled to obtain copies of the proceedings including statements of the prosecution witnesses recorded therein till the proceedings are concluded by the Court and the same are confirmed by the confirming authority. To this extent Rule 129 clearly supplant the provisions of Section 76 of the Indian Evidence Act. In terms of Section 87 of the Act, as explained above, it is permissible. The argument of learned counsel for the petitioner to the contrary is without substance and, therefore, rejected."

Coming to the challenge related to the vires of the constitution the Court observed that indisputably and undoubtedly, Article 21 of the Constitution of India guarantees fair trial right to the petitioner. It provides that "no person shall be deprived of his right of personal liberty except according to procedure established by law." A criminal trial, which may result in depriving a person of not only of his personal liberty but also his life, has to be fair, unbiased and without any prejudice for or against the accused.

"A trial whether before a Criminal Court or before a General Security Force Court, which does not provide fair and proper opportunities allowed by law to prove innocence violates the right to life and liberty guaranteed to the citizens and non-citizens by Article 21 of the Constitution of India. Apart from various fair trial rights guarantees to an accused facing a criminal trial, right to cross-examine or to have examined witnesses against him and to obtain attendance and examination of the witnesses on his behalf under the same conditions as witnesses against him is well recognized both in International Human Rights Law as well as the domestic law. The right to cross-examine a witness with adequate time and facilities for production of his defence is necessary concomitant of right to fair trial guaranteed to an accused facing a criminal charge."

Court said that Rule 129 of the Rules, as it is, does take away vital fair trial right of an accused tried under the Act and, therefore, would fall foul of Article 21 of the Constitution of India. The Court then referred to Article 33 of the Constitution and said that the Parliament is empowered to modify the rights conferred by para-III of the Constitution and to determine to what extent any of the rights conferred by the said part shall, in their application to the members of armed forces or members of the force charged with maintenance of public order etc be restricted or abrogated so as to ensure proper discharge of their duties and the maintenance of discipline among them.

"While there is no dispute that Article 33 empowers Parliament to restrict or abrogate fundamental rights in their application in relation to armed forces, para-military forces and the police etc, it may be noted that Article 33 does not itself restrict or abrogate any right. Their abrogation or restriction depends on parliamentary legislation. The Parliament, which is empowered under Article 33 to frame such legislation, cannot act to curtail fundamental rights of the members of the armed forces unless it is so required to ensure proper discharge of their duties and maintenance of discipline among them."

Therefore the court was of the view that the power of Parliament under Article 33 is, therefore, absolute but hedged by the condition that it would be used only if required to ensure proper discharge of duties of the force and maintenance of discipline among its members. Keeping in view the said intention behind the aforesaid provision, the Court then noted that there seems to be no nexus between restricting right of the accused to obtain certified copies of the proceedings and maintaining discipline in the force or is not in any manner in derogation of proper discharge of duties by members of the force.

"The discussion on Article 33 of the Constitution in the context of modification or abridgement of fundamental rights of the members of the armed forces or force charged with maintenance of public order etc is contained in para 56 to 62 of the judgment, the crux whereof is that the constitution empowers the Parliament to determine by law extent to which the rights conferred by part III of the constitution shall be restricted or abrogated in their application, inter alia, to the members of the armed forces or the forces charged with maintenance of public order only if it is necessary to ensure proper discharge of their duties and maintenance of discipline among them."

Accordingly, the petition was disposed of with direction to General Security Force Court to proceed with the trial as aforesaid and conclude the proceedings with reasonable dispatch, of course, strictly as per the provisions of the Act and the Rules framed.

Case Title: Rovinder Singh  V/s Union of India and others

Citation: 2022 LiveLaw (JKL) 22

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