The Armed Forces Personnel Versus Article 33

LAW MANTRATHINK BEYOND OTHERS (National Monthly Journal, I.S.S.N 2321 6417)

“THE ARMED FORCES PERSONNEL VERSUS ARTICLE 33”

Abstract

Article 33 of the Constitution of India, creates an environment wherein enactment of Army Act and other similar Statutes governing the Armed Forces of the Union was made possible. Article 33 is one such Article which does not have any parallel in any other Constitutions of the world, from which we claim to have sought inspiration for drafting our own Constitution. No other pre-1947 Constitution in the world has similar provision. The Sovereign, Socialist, Democratic, Republic of India that is “Bharat” was created as a Federation of all individual sovereign citizens including citizen servicemen of the Armed Forces. Though there is a clear mandate under Article 13 of the Indian Constitution against allowing any pre-constitution law infringing upon the Fundamental Rights which are regarded as being inalienable, Article 33 was inserted in the Constitution by a process which was not debated upon by the members of the Constituent Assembly and by which the status of the Armed Forces was reduced to nothing more than slaves.

Key Words: Army Act, Armed Forces, Article 33, Constitution, Citizen Servicemen, Fundamental Rights, Inalienable, Constituent Assembly.

Introduction

„We the People of India‟, all individual 35 crore sovereign people having succeeded in forcing our British masters to leave India on or before 15th August 1947, embarked upon the task of creating a Constitution through our unanimously chosen representatives in the Constituent Assembly. This Constitution was to be a written record of mutual agreement which laid down the bedrock whereupon the edifice of future republic was to be erected. In this federation of Individual sovereign citizens, Armed Forces personnel participated on equal terms with other citizen and had unfettered natural right to protect their sovereignty likewise. The State was ordained to function without encroaching upon our right to life and liberty being at the apex of Constitutional rights under Articles 14 to 32. „We the People of India” did not create any classification among ourselves so far as protection of that right to life and liberty was concerned. Under this resolution dated 22.01.1947, Article 13 was incorporated in the Constitution, wherein limits were laid down within whose ambit our Parliament would legislate.1 It may be noted that Article 13 (4) did not form part of original Constitution it was inserted, by The Constitution (Twenty Fourth Amendment) Act, 1971.

I.

MILITARY JUSTICE SYSTEM UNDER CONSTITUTIONAL SCHEME

The Preamble to the Constitution of India secures to all its citizens Right to Justice, Liberty, Equality and Fraternity. It is ironical that under Article 33 the fundamental rights which were to be inherent and natural of every individual sovereign member were made to look as a dole given at pleasure by the executive. Sri. Lokmanya Tilak‟s famous lines, „freedom our birth right‟ has somewhere lost its resonance and meaning.

1

India Const. art. 13. (Article 13 lays down, laws Inconsistent with or in derogation of the fundamental rights:-(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law, which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. (3) In this Article, unless the context otherwise requires:-(a) “law” includes any Ordinance, order, byelaw, rule, regulation, notification, custom or usage having in the territory of India the force of law. (b) “laws in force” includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation at all or in particular areas. [(4) Nothing in this article shall apply to any amendment of this Constitution under Article 368]).

Article 332 was inserted in the Constitution without a healthy debate and which without even letting the citizens who joined the Armed Forces know, threw them into institutionalized slavery. Deprivation of life and liberty can only be according to fair procedures under the law of the land and not by any arbitrary or biased means. The Supreme Court of India has brought out this fact in its various judgments, especially relating to disproportionate, arbitrary and whimsical punishment given to the soldiers.3 With virtually no provision for bail in the Military Justice System, the guarantee under Article 21 is rendered meaningless. The discretion given to the Commanding Officer to release the accused from custody smacks of arbitrariness and is liable to be misused.4 The lack of legal aid provided to an accused is also against the guarantee given under Article 22 of our Constitution.5

The Indian Constitution protects its citizens accused of a crime from being punished twice for the same offence. This is enshrined under the Doctrine of Double Jeopardy in Article 20 (2) of our Constitution.6 This protection is not available to the Air Force personnel under the Air Force Act 19507, though the Navy Act since its inception in 1957 had this protection and in 1992 after changes in the Army Act 1950, successive trial in Army as well as in civil was deleted. This is not only a gross violation of Article 20(2) but also Article 148 of our Constitution.

2

AV Dicey, Introduction to the study of the Law of Constitution, 10th edition, (London: Macmillan & Co, 1885). (For the ease of appreciation Article 33 is reproduced below; “33.Power of Parliament to modify the rights conferred by this Part in their application to Forces etc:-- Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to:-(a) The members of the Armed Forces, or (b) The members of the Forces charged with the maintenance of public order; or (c) Persons employed in any bureau or other organization established by the State for purpose of intelligence or counter intelligence; or (d) Persons employed in, or in connection with, the telecommunication system set up for the purpose of any Force, bureau or organization referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them).” 3 Ranjit Thakur v Union of India, A.I.R. 1987 S.C. 238.; Ex Naik Sardar Singh v Union of India, (1991) 3 S.C.C. 213. 4 U.C Jha, The Military Justice System in India: An Analysis, at 50 (LexisNexis, Butterworths Wadwa, Nagpur, 2009). 5 India Const. art 22 cl. 1, ( it states that „ no person who is arrested shall be detained in custody without being informed, as seen as may be, of the grounds for such arrest nor shall he be denied the right to consult, and be defended by, a legal practitioner of his choice.‟). 6 India Const. art 20 cl. 2, ( it states that, „no person shall be prosecuted and punished for the same offence more than once). 7 Air Force Act (AFA) 1950, § 126 ( it provides that a person convicted or acquitted by a Court-martial may, with the previous sanction of the Central Government, be tried again by a criminal Court for the same offence, or on the same facts). 8 India Const. art. 14 ( it enunciates equality before law and equal protection of law, and which in the above scenario where only the Air Force Personnel have to undergo Double Jeopardy and not their fellow soldiers and counterparts in the Army and the Navy, does not seem to be the case and is in utter violation of Article 14 of the Indian Constitution).

After the institution of the Armed Forces Tribunal Act 2007, for the first time Armed Forces personnel had the liberty to file for an appeal against the Order of a Court-martial. It is very important for our Parliamentarians to take into account the needs for the changing time and as Austin (1999)9 points out that whenever there is a conflict or competition between integrity, democracy and social revolution, which are the three strands of unity, there is a need for a delicate balance among the three.

II.

JUDICIAL PRONOUNCEMENTS ON ARTICLE 33

It is an indisputable fact that Article 33 of the Constitution of India is against the basic structure of the Constitution. It violates the spirit of the Preamble of the Constitution and it tries to negate the guarantee given by „We the People of India” to ourselves in the form of Article 13 which is prior to Article 33 in the scheme of the Constitution and forms part of the same Part III of the Fundamental Rights. Article 33 has come before the Apex Court time and again in varying circumstances sometime as an indirect reference and often through challenge thrown to it directly in other instances. A number of cases have been adjudged as biased and arbitrary under Article 21 of our Constitution. An endeavour shall be made here to assess the stand taken by the Apex Court and other superior courts (High Courts) in the matter and analysis thereto without any disrespect to the Honourable Courts judgments.

The earliest reference to Article 33 is made in R Chatterjee versus Sub Area Commander

10

This was a case where a short service Commissioned Officer of the Indian Army (Leuitenant R Chatterjee) was alleged to have deserted from service that he joined before Army Act 1950, came into force and subsequent to his date of retirement / release he was taken into military custody and tried by a Court-martial on charges of having absented from the station for one month without proper authorization. The Petitioner challenged the competence of the Army Authorities to try him by a Court-martial after he had ceased to be subject to the Army laws as well as the fact that he had joined as short service Commission Officer on an advertisement and that the Army Act of 1950 was not applicable in his case. However no challenge was ever made with regard to the validity of Article 33. That being the case, no provision of Army Act or any other laws relating to the Armed Forces could be assailed on any ground as all are protected by the existence of Article 33 of the Constitution of India.

9

Granville Austin, working of a Democratic Constitution: A History of the Indian Experience, 651 (Oxford University Press, New Delhi, 1999). 10 A.I.R. 1951 MAD 777.

In Ram Sarup versus Union of India case11 the petitioner, a Sepoy, was sentenced to death on charges of killing two Sepoy‟s and one Havildar. After his confirmation of sentence, he filed a Writ in the Supreme Court and contended that he was not allowed to have a legal representative of his choice at the General Court-martial(GCM), which was in violation of Article 22(1) of the Constitution. He further contended that Parliament under Article 33 of the Constitution can modify the fundamental rights guaranteed by Part III, in their application to the Armed Forces. It enacted Section 21 of the Army Act, 1950(AA) which empowers the Central Government, by notification, to make rules restricting to such extent and in such manner as may be necessary, the right of any person but it does not cover the fundamental rights under Articles 14, 20 and 22 of the Constitution, thus indicating the intention of Parliament not to modify any other fundamental right. The Hon‟ble Supreme Court held that every provision of the Act is a law made by Parliament and that if any such provision tends to affect the fundamental rights under Part III of the Constitution, that provision does not, on that account, become void, as it must be taken that Parliament has thereby, in the exercise of its power under Article 33 of the Constitution, made the requisite modification to affect the respective fundamental right. In this case the Hon‟ble Supreme Court did not address the issue of legal counsel of one‟s choice which is the minimum requirement for a fair trial.12 The mere submission that the accused had not categorically asked for a lawyer does not mean that he has waived off his right to legal representation. The level of education and knowledge in legal matters of the petitioner has to be taken into account. The grave nature of the charges or the situation could have easily eluded him due to his ignorance. In the case of Ous Kutilingal Achudan Nair and Others, versus Union of India and Others13 provisions of AA Section 21 read with Army Rules (AR)19, 20 & 21 which prohibit participating in unauthorized organizations or forming unions was challenged. In this case the petitioners who were the office bearers of staff unions in the newly constituted employee unions had challenged their dismissal and other disciplinary actions initiated against them by their employers / respondents. But again vires of Article 33 was not challenged. Therefore, the Apex Court drawing sustenance for its conclusions from Article 33 observed that by reading of 11

A.I.R. 1965 S.C. 247. See Jha, supra note 4, at 50. 13 A.I.R. 1976 S.C. 1179. 12

Section 21(1) of the AA, the petitioners fell in the description of the "members of the armed forces" within the contemplation of Article 33 and thus their curtailment of fundamental rights was allowed. The appeal failed and was dismissed. It is discernible from the judgment of the Apex Court that every action of the Government to the extent of denying the basic right to form association among civilians also is held to be illegal by the operation of Article 33 and thus applying provisions of Army Act Section 21 read with Army Rules 19, 20 & 21. Another landmark case, Lt. Col. Prithi Pal Singh Bedi versus Union of India14 wherein the petitioner who was to be tried by GCM for breach of army discipline, questioned the legality and validity of the order convening the general court martial, more particularly, its Composition. In each of the three writ petitions under Article 32 of the Constitution it was contended that to satisfy the requirements of Article 33 the law must be specific in which a specific provision imposing restriction or even abrogation of fundamental rights should be made with accordance of natural justice. Dismissing the petitions, the Court held, “The dominant purpose in construing a statute is to ascertain the intention of Parliament..... Article 33 of the Constitution which confers power on Parliament to determine to what extent any of the rights conferred by Part III shall in their application to the members of armed forces be restricted or abrogated does not obligate that Parliament must specifically adumbrate each fundamental right and specify in the law 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 the case of R. Viswan and Others versus Union of India and Other 15, all 24 petitioners were civilian employees of General Reserve Engineering Force (GREF), who had been brought under the provisions of AA. Two among them had proceeded on leave and as was the normal trend in civilian employees in the tribal belt they did not rejoin their duties on time and Army Act 1950 was for the first time invoked in the history of GREF in their case. Other 22 had been charged with offence of holding demonstrations, collective insubordination.16 They were tried by a Court-martial and on being convicted were dismissed from service. These petitioners raised several grounds in challenge against the action of their dismissal from service by a Court-martial before the Apex Court. They contended that GREF was not a Force raised and maintained under the authority of the Central Government. Further, Section 21 of the Army 14

A.I.R. 1982 S.C. 1413. A.I.R. 1983 S.C. 658. 16 Army Act(AA) 1950, § 63 15

Act, 1950 read with Rules 19 to 21 of the Army Rules, 1954 were not applicable to the members of GREF as they were not "members of the Armed Forces or the Forces charged with the maintenance of public order" within the meaning of that Article. Another argument was that under Article 33, it was Parliament alone had the powers to abrogate fundamental rights in application to the members of the Armed Forces so as to ensure the proper discharge of their duties and the maintenance of discipline amongst them and Parliament could not leave it to the Central Government to determine the extent of such restriction or abrogation as was sought to be done under Section 21of AA. Section 21 was therefore, according to the petitioners, unconstitutional and void and along with Section 21 must fall Rules 19 to 21 of the Army Rules, 1950. The petitioners were entitled to exercise their fundamental rights under clauses (a), (b) and (c) of Article 19 (1) without any of the restrictions imposed by Rules 19 to 21 of the Army Rules, 1954 and if that be so they could not be charged under Section 63 of the Army Act, 1950 on the facts alleged against them and their convictions by the Court Martial were illegal and void and consequently they continued in service of GREF

The Apex Court negated all these arguments set up by the petitioner with one stroke of Article 33 and held that in view of Article 33 every action on the part of the State was valid. The Court further held that Article 33 is an exception to fundamental rights of the members of the Armed Forces and any restriction or abrogation of these rights would depend on the current situation. There can be no set statutory formula for this. It would have been prudent to challenge the vires of Article 33 itself as being against the basic structure of the Indian Constitution. In Ajmer Singh and Others versus Union of India and Others17 the appellants were convicted by the GCM for offences under the AA undergoing their sentences of imprisonment claimed the grant of benefit for set off contained in Section 428 Cr PC and preferred appeals in the Supreme Court of India. It was contended on their behalf that the AA is silent with respect to the topic as to the date with effect from which the period of imprisonment covered by the sentence is to be reckoned, and that since Section 5 of the Cr PC only lays down that nothing contained therein shall affect any special or local law, in the absence of any specific provision in the AA the provisions of the Code would get attracted. Dismissing the appeals, the Court,

17

A.I.R. 1987 S.C. 1646;See also, F.R. Jesuratnam v. Chief of Air Staff, (1976) Cri. L.J. 65.

held that such provision was not attracted in case of persons who have been convicted by Court-martial and sentenced with imprisonment.

The petitioner in this case of Major G. S. Sodhi versus Union of India18 was charge-sheeted and tried by Court-martial for using physical assault and was found guilty and punishment of removal from service was ordered. The Court-martial proceedings and the order of punishment were questioned on various grounds among which recording of additional Summary of Evidence was contended not to be contemplated in the code and thus any proceedings under it was to be vitiated. The thrust of the case was based on the contention that Army Rule (AR) 1950, sections 22-25 have not been followed in its true spirit. In this case too, the Apex Court had referred to an earlier decision of its own Lt Col PP Singh Bedi versus Union of India and repeated the observation made therein. Further the Hon‟ble Supreme Court had observed in Para 14 of the judgment that for additional Summary of Evidence no special provision is necessary as once Summary of Evidence (SOE) starts, additional SOE is its necessary concomitant. Proceedings under Rule 22 to 25 are meant to satisfy the Commanding Officer whether Court-martial should be ordered or not and in the present case no violations had taken place. The Court further observed, “even otherwise if there are some minor irregularities they do not in any way, affect the proceedings in the general court martial during which a regular trial was conducted.”19 With all due regard to the Hon‟ble Supreme Court it may be observed that the Apex Court erred in the above observations on the following points;

(a) It failed to notice that procedure under Army Rule 22 is akin to procedure prescribed in civil/ criminal law under the head, Issue of Process (Section 204 Cr PC 1973 /1898). In these proceedings the Commanding Officer is performing a judicial function as to whether the charges against the accused ought to be proceeded with or dropped.

(b) It failed to take a note that Army Rules 23 to 24 prescribe a procedure that was prescribed under the Section 207-A Cr PC 1898, e.g., committal proceedings before the Magistrate. These committal proceedings are a full-fledged trial by itself and the accused is entitled to be represented by a counsel at these proceedings. At the 18 19

A.I.R. 1991 S.C. 1617. Id.

committal proceedings before the Magistrate, under Section 207-A, once all the evidence on the part of prosecution was recorded, the accused leads his defence wherein he can either keep silent, examine himself and / or produce witnesses in his defence and which brings the trial to a close. What remains thereafter, are the arguments of the counsels on both the sides, findings and sentence by the judge. But once the defence has handed over the reins of proceedings, there is never any question of prosecution getting any more opportunity to lead additional evidence. It can bring any number of witnesses and adduce any amount of evidence it pleases, but not after the defence was handed over at the trial. That would amount to surprising the defence and improving its own case by the prosecution both of which acts are not provided in criminal jurisprudence.

(c) The Apex Court erred in observing that Additional SOE was a necessary concomitant of Summary of Evidence. The Prosecution does have right to bring in as many witnesses and lead as much evidence as it pleased, but only before a final caution was given to the accused inviting him to lead his defence under AR 23 (3) which meant that the prosecution had recorded all the evidence it had and there was nothing left in its armour. If at all the prosecution evidence had been recorded after inviting the accused to lead his defence, the prosecution could only bring in something which was not true, which was fabricated and which was improvement and highly impermissible in law. (d) The Apex Court also went wrong in observing that “the entire proceedings contemplated under Rule 22 to 25 are only preliminary and it is meant for the purpose of Commanding Officer satisfying himself whether Court-martial should be ordered or not.” It ought to have appreciated that proceedings before it, were not an executive function. It was a judicial function of a magistrate. Before him were two sides e.g. the prosecution and the accused. He has to side with none. He has to act judicially and that meant that the Commanding Officer could not permit the prosecution to improve its case after the accused has opened up his defence. (e) The Apex Court also went wrong when it observed, “But we are unable to find any flagrant violation of any of these rules. Even otherwise if there are some minor irregularities they do not, in any way, affect the proceedings in the General Courtmartial during which a regular trial was conducted.” It may be noted that no degree can be ascribed when there is a violation in procedure and it ought to vitiate any further

proceedings. Secondly, these were not minor irregularities. It was permitting the prosecution to demolish the defence after it is exposed, by further mustering, fabricating, improving upon the weaknesses of the prosecution which were pointed out by the defence.

In Union of India and Others versus Ex. Flt. Lt. G.S. Bajwa

20

The Supreme Court had ruled

that the legality of the provisions of the Air Force Act 1950, cannot be challenged on grounds of being violative of fundamental rights of Armed Forces personnel as the restriction imposed were mandated by the Constitution itself.21 The appellant, Ex. Flt. Lt. G.S. Bajwa had contended firstly, that denial of advocate led to miscarriage of justice particularly in a case where the prosecution itself alleged that the he was suffering psychologically to some extent. Secondly, on handing over witness list he was called upon to disclose the relevancy of each witness which he apprehended may disclose his defence to his prejudice. Thirdly, he was not supplied copies of the proceedings despite his repeated requests which amounted to denial of reasonable opportunity to defend him and was also against the principles of natural justice. Lastly he contended that the prosecutor, the Judge Advocate and the Members of the GCM met behind closed 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.

With due respect to the Supreme Court it is submitted that it is the cardinal principle of administration of criminal justice that the defence is entitled to keep to itself the line of defence till the prosecution has submitted its entire case and led all its evidence. If the accused is asked to give out the names of its witnesses who are all members of the same organization it is easier for the prosecution to coerce and tutor those witnesses and jeopardize the defence case. Even the line of defence would become open and prosecution may pre-empt the same by bringing other additional witnesses tutored or otherwise, to demolish the case of the defence. The issue here was not as to whether giving out of the names by the defence of its witnesses would have jeopardized the defence or not. The question in fact was as to whether it would have created an impression on a reasonable man that those witnesses would be influenced by the department or not. In the cases of Armed Forces where command influences counts more than any other thing, this probability and possibility is always lurking at the back of the mind of the person

20 21

MIL LJ. 2003 S.C. 129. Jha, supra note 4 at 48.

standing trial and prosecution ought to strive to do everything possible to remove such impression and apprehension from the mind of the person standing trial.

In the matter of non- supply of copies of day to day proceedings the Apex Court was not impressed upon in this regard that even though the accused is permitted to go through the proceedings before the court is closed to consider the findings by virtue of Army Rule 100, but what was complained of was that the proceedings, evidence of witnesses being recorded etc. did not bear either the signatures of the witnesses concerned or the members of the Court Martial. Now unless a copy of the same was given to the accused on day to day basis, nothing prevented the prosecution from tampering with the proceedings without being found out. It was to prevent this from happening that copies were demanded by the accused. Even if the accused availed of his right to inspect proceedings every day he could not be sure that the same have not been later on doctored to fortify the case of the prosecution. Accused required copies of the proceedings to confront the witnesses there and then in cross-examination. Giving the same after the proceedings were over and he had either been acquitted or convicted & sentenced, did not afford him a sufficient opportunity to defend himself at the trial. This could under no circumstances be treated as complying with the principles of Natural Justice. The Apex Court had drawn sustenance from its own earlier judgment in Ram Sarup‟s case22 which in fact was passed without any serious deliberation on the point. Thus cursory glance on all the pronouncements of the Apex Court on Laws relating to the Armed Forces of the Union, one fact stands out e.g. during the period of more than half a century of the Constitution coming into force, never a challenge has been thrown at the Article 33 and its ramifications on the members of the Armed Forces of the Union.

III.

CONCLUSION

It may be stated that Article 33 is one such provisions of the Constitution which is in direct conflict with Article 13 thereof and where a conflict between any Constitutional or statutory provisions on the one hand and the fundamental rights on the other arises, those Constitutional or Statutory provisions must give way to the fundamental rights.

22

Ram Sarup, supra note 11.

It is only the sovereign in the form of a sovereign Parliament that has the absolute power over the life and liberty of a citizen in general and its servants in the Armed Forces in particular. It is only in the event of a criminal offence that has a bearing against the State, that limits of unlimited enjoyment of right to life and liberty may be circumscribed by the State through a Court of Law. Under no other service law governing any other service of the State, domestic service tribunal has been vested with the powers over the life and liberty of a servant for a misdemeanour –in-service. This makes one thing clear that either the members of the Armed Forces are degraded by the application of Article 33 to the status of slaves having no fundamental rights; or Article 33 and all laws made there under depriving the valiant soldiers; defenders of our sovereignty; of their fundamental rights are unconstitutional.

Article 33 did not draw much attention of the Parliamentarians and members of the Bar for the last 60 years because its victims were usually hapless soldiers at the lowest strata of the Armed Forces Services. They did not have means to agitate the costly judicial system of our country. According to Justice VR Krishna Iyyer,23 “they are priced out from the market of Justice in our country”. In the words of William Blackstone,24 given as under, one can conclude this chapter, “How much therefore is it to be regretted that a set of men, whose bravery has so often preserved the liberties of their country, should be reduced to a state of servitude in the midst of a nation of freemen!”

By:- Jyoti Chatterjee Research Scholar, WBNUJS

23

Sunil Batra v Delhi Administration II, A.I.R. 1980 S.C. 1579. William Blackstone, Commentaries on the Laws of England: A Facsimile of the First Edition of 1765-1769, (Chicago: University of Chicago Press, 1979), available at http://presspubs.uchicago.edu/founders/documents/a1_8_16s2.html (last visited on Jun. 14, 2012). 24