LT. COL. PRtTHI PAL SINGB. BED! ETC. v. UNION OF INDIA & OTHERS

(c) if he thinks it .desirable, re-bear· tbe·case and either dismiss the charge or dispose of it summarily. G (2) .If the accused is remanded for trial by a court-martial, the commanding officer shall without unnecessary delay either. assemble a su,mmary cpurt··martiai' (after referr- ing to the officer empowered to convene a district H court-martial or on active service as summary general court-martial when such reference is necessary) or 4

PRJTHIPAL v. UNION (Desai, J.) 431

apply to the proper military authority to convene a A court-martial, as the case may require.

· 25, Procedure on charge against offic~r : (I) Where an officer is charged with an offence under the Act, the B investigation shall, if be requires it, be held and the evidence, ff he $0 requires; be taken in bis presence, in writing, in the same. manner as 'nearly as circumstances admit, as is required by rule 22 and rule 23 in the case of other persons subject to. the Act.

. (2) When an officer is remanded for the· summary disposal c of a charge against him or'is ordered to be tried by a court-martiai· without any such· recordin·g of evidence in his presence, an abstract, of evidence to be adduced shall be ·delivered to him free of charge as provicjed in sub-rule (7) of rule 33." D The submission is that before · a 'general . court martial is convened as provided in rule 37 it is-obligatory for the commanding officer to bear t)l_e charge made against the accused in his pre~ence giving an opportunity to the accused to cross-examine any witness against him and to call any witness. and make any .statement in bis defence -and that if the commanding officer is so· satisfied be can dismiss the charge as provided in sub-rule (2) of rule 22. If at the conclusion of the bearing under rule 22 the commanding officer is of ·the opinion that.the charge ought to be proceeded with, he has four options open to. him, one such being• to adjourn the case.for the purpose of having the evidence reduced to writing, called· summary of evidence. Rule 23 prescribes the procedure for taking down the summary of "evidence which, in"ter alia, provides recording of the '- evidence of each witness, opportunity to the accused to cross- examine each such witness, etc. Rule .24 p;ovides that the summary • of 0

evidence so recorded shall be considered by the commanding .officer who at that stage has again three· c~urses op~n to him, to wit, (a) remand the accused for trial by a court-martial, (b) refer the G case to the proper superior military authority; and (c) if be thinks it· desirable, re-bear the case and either. dismiss the charge or dispose .hof summarily. It was. urged that in case of the petitioner Li, Col. 0

Bedi, the commanding officer did not hear the charge in bis presence H \hat po direction to prepare a summary of eviden~e i~ which he

432 SUPRBMB COURT REPORTS (1983) f S.C.R. A could participate was given and that without complying with the mandatory requirements of rules 22 and 23 a direction ha.s been given to convene the court-martial to try the petitioner. Rules 22 to 2~ are mandatory in respect or every person subject\ to the Act other than an officer. Therefore, the requirements of rules 22 to 24 are not mandato.ry in case of an officer and this becomes mani- B festly clear from sub-rule (I} of rule 25 which provides that where an ' officer is charged with an offence under the Act, the investigation shall, if he requires it, be he_!d, and the evidence, if he so requires, be taken in bis presence in writing in the same manner as nearly as circumstances admit, as is required by rule 22 and rule 23 in the case of other persons subje~t to the Act. The opening words of rule 22 clearly demonstrate the mandatory applicability of the provisions in rule 22 and 23 rule in case of persons subject to the Act other than officers. Any lurking doubt in that behalf is removed by the language of rule 25 which provides that if an officer is charged with· an offence under the Act, the investigation, if be requires; sh.all be held and the evidence, if he requires shall be held and· the .evidence, if · • requires it, shall be taken in h'is presence. }'he petitioner is an officer. Therefore, the procedure prescribed in rules 22 and 23 will not apply porprio vigor to him. If he wants rules 22 and 23 rule to be complied ·with, it is for him to .make a request in that behalf. He has to niake a two-fold request : (I) that the investigation shall be done in his presence; and (2).. the summary of evidence shall also be drawn in his presence. Petitioner in this case has averred in his petition that the commanding officer did not hear the charge as required by rule 22 and, therefore, he could not participate in the hearing of the charge ngr could be cross-examine the witnesses and make his '\ submissions. He further stated that no ~barge-sheet was given to him. He has averred that the order dated ·November JO, 1980, for taking down summary of evidence is void and illegal as it is violative of Rule 23 of the Rules. Mr. Sanghi contended that failure .?'-· to comply with rules 22, 23 and 24 has denied to the petitioner an • opportunity first to convince the comrnanding officer to dismiss the charge· under sub-rule (2) of rule 22 and even if he could noi have persuaded the commanding officer to dismiss the charge after the summary of evidence was recorded, he could have persuaded the commanding officer under rule 24 either to refer the case to superior military authority or re-hear it and dismiss the charge and this dential of opportunity vitiates the subsequent trik by· general court martial. Nowhere in the petition the petitioner has specifically

PRITIDPAL v, UNION (Desai, J.) 433

stated that he did make a request that the investigation shall be done in his presence and that the summary of evidence should be recorded in his presence. · There is utter sphinx like silence on this point. In para 39 of the counter-affidavit· on behalf of the respon- dents it is specifically stated that rule 25 requires that ir an officer • wants rules 22 a~d 23 to be complied with, be has to make a request · in that behalf and that the petitioner never made such a request at the appropriate time and, therefore, .cannot now· make a grievance that rules 22 and 23 ·have not been complied . with. There is no rejoinder to the affidavit. ·Therefore, it is crystal clear that in the absence of a request from the petitioner as required 'by rule 25, failure to comply with rules 22, 23 and 24 would n'ot vitiate the trial ·~ by the general court-martial. Rex v. Thomson,(') ~as relied upon c to buttress the submission that there has to he hearing of the charge I by the officer Com_manding in the presence of the ·offender and the offender should he afforded full opportunity to he heard before a court martial is convened and this is a mandatory requirement and the > courts must draw a distinction between what is ·merely irregular and what is of such a character as to be of substance. It was . D urged that compliance with this procedure which affords· full opportunity of participation· cannot be treated as merely directory but must be held to be. mandatory to ensure a just and fair trial and its violation must be held to vitiate the order convening the court- martial and the order would. be without jurisdiction. It may be pointed out that the offender in the case before the court in that case was a non-commissioned officer governed by the Army Act, 188 J. He was thus a person other than an 0 fficer subject to the Army Act and the mandate of rules27 and 23 in his case WOl!ld have applied ,in all its rigour but as has been pointed out the petitioner in the present case is an officer and unless he requires it, rules 22 and 23 .F ·~. are not required to be complied with and, therefore, the decision does not advance his any further. Therefore, there is no merit in this contention.

Incidentally it was urged thai to the extend rule 25 erodes G mandatory compliance with principles of natural justice as adumberated in rules 22, 23 and ·24 it wquld be violative of funda- .. mental rights guaranteed under Article Zl of the Constitution and

(I) [1946) 4 DLR ~79.

434 iUPRBME COURT REPORTS (1983) I s.c.R. ,

A -WOUid be ultra vir<s the Constitution. Referring to Lee v. Showmen's Guild of Greai Britain,(') it was urged that public policy would. invalidate any stipulation excluding the application of the rules of natural justice to a tribunal whose. decision was likely to result in deprivation of personal liberty. ·.·Continuing along this· line it was urged that to . the extent the application of minimum B principles of natural justice enacted In rules 22, 23 and 24 depends for its applicabiliiy upon the demand by the officer it would be contrary to public policy which mandates that compliance with rules of natural justice should not be made dependent upon a requisition by· the person against whom the inquiry is-held but it must be deemed to be 'obligatory and an integral part of any procedure prescribed for a Tribunal whose decision is likely to result in deprivation of personal liberty. It has already been pointed out that Parliament has the power to restrict or abrogate- any of the rights conferred by Part III of the Cons\itutioµ in their applicatipn to the members of the Armed· Forces so as to ensure the proper discharge of duties and maint e- • nance of discipline amongst them.· The Act is one such ·law and, therefore, any of the provisions of the Act cannot be struck down on 'the only ground that they restrict or abrogate or tend to restrict or abrogate any of the rights conferred by Part III of the Constitu- tion and this would indisputably include Article 21. , But even apart . from this, it is not possible to subscribe to th.e view that even· where the prescribed procedur.e inheres compliance with principles of natural justice but makes the same dependent upon .the requisition by the person against whom the inquiry is held, it would be violative • of Article 21 which provides that no person shall be deprived of his 0

life or personal liberty except according to tbe procedure established by Jaw. If the procedure established by law prescribes compliance with principles of natural justice but makes it dependent upon a F requisition by the person against whom an .inq'!iry aocording to such 'procedure is to be held, it is· difficult to accept the ~ubmission that such procedure would be violative of Art. 21. And as far as the Rules are concerned, they have made clear distinction between an ! officer governed by the Act and any other perso11 subject to the Act. Expression 'officer' h.as been defined to mean a person commis- sioned, gazetted. or in pay as an officer in the regular Army and includes various other categories set out therein. By the very definition an officer would· be a per~on belonging to the upper bracket in the Armed Forces and any {'Cr$Ol\ other than an office~

(I) [t952)2 QB 329, .

. PR!THI PAL v. UNION (Desai.!.) A subject to the provisions of the Act would necessarily imply persons · belonging to the lower categories in the army service. Now, in respect of sue[[ persons belonging to the lower category it is man- datory that rules 22, 23 and 24 have to be followed and there is no escape from it e~cept on the pain of invalidation' of the inquiry. But wh.en it comes to an officer, a pesson belonging to the upper B bracket in the.armed forces, the necessary presumption being that he is a highly educated,, knowledgeable, intelligent person, compli- ance with rules 22, 23 and 24 is not obligatory but would have t.o be. ,; complied with if the officer so requires it. This is quite rationirl and understandable. One cannot be heard to. say that he would not insist upon an inquiry in which he can participate which is his right, c and then turn round and contend that failure to hold the inquiry in .""' accordance with the principles of natural justice as enacted in rules -- 22, 23 and 24 though he did not insist upon it,, would not merely invalidate the inquiry but the rule which requires compliance at the request of the officer is in itself on that' account ultra vires It,, D > was, however, urged that in view of. the decisions of this Court tn Mohinder Singh Gill and Anr, v.. The Chief Election Commissioner, New Delhi & Ors.,(') and Maneka Gandhi v; Union of India, it is an incontrovertible proposition of law that even while finding a balance . between need for expedition and need to give full opportunity to the person against whom the inquiry is held, "a body charged with a duty to act judicially roust comply with the minimum requireme.nts of natural justice and that if observance of natural justice in.the area of administrative decision making so as to avoid devaluation of the principle by administrators aln;ady alarroi~gly insensit(ve to the 1

rationale of audi altermpartem" that one can ever look upon with equanimity where. this principle gives way before a 'tribunal charged F with a duty to act judicially. As has been pithily observed by an ~ author. such an overemphasis overlooking the other procedural \, safeguards prescribed, "indeed.' wears an engaging .air of simplicity and reason but having examined the eritire procedure one ban say ·confidently _that this simplicity is merely skin deep." Rules ~2, 23 G • and 24 prescribe participation at a stage prior to the trial by the court martial. Undoubtedly, fairness in action' and natural jusiice. have been developing very rnueh in rec(l_nt years and .jf. the power of the executive increases the courts have devs'loped the doctr.ine in an H (I) [1978] 2 SCR 272.

. 436. ~UPREMli COURT REPORTS (1983] \ S.C.R •

A evolving way so a striking out expendition is perilous.(1) By rejecting the contention a striking expeditioR of this wholesome · principle ii not undertaken. It must, however, be pointed out that in a trial which is likely to result in deprivation of liberty the body which has ultimated the power to make an order which would result in deprivation of liberty, must hear the offender· offering full B participation and that ·principle cannot be . diluted. However, procedure prescribed in rules 22, 23 and 24 is at a stage anterior to trial by the•court martial. It is the decision of the court martial which ·would result in deprivation of liberty and not the order directing that the ch.arge be heard or that summary of evidence be recorded or that a court martial be convened. Even in normal trial under the Criminal Procedure Code it has never .been sii°'ggested that

- it is unfair to launch a crminal prosecution without first hearing ~· the accused (see Lord Salmond in Cozens v. North Daven Hospital Management Committee('). Therefore, there is no substance in the I

contention that rules 22, 23 and 24 in view of the provision contained in rule 25 are ultra 'vires Article 21 of the Constitution. 0

Mr. Banerjee; learned Additional Solicitor-General in this context urged. that even if it is felt that there is some violation of the provisions contained in rules 22, 23 and 24 in case of an officer, as the officer will have an opportunityto exhaustively participate in the tfial by the court martial the irregularity emanating from non-com- pliance ·with rules 22, 23 and 24 would n~t vitiate the order convening •. the court-martial. Reliance was placed on Major E.G. Barasay v. The State of Bombay,(') in which the question arose whether an investi- gation by an officer of the Delhi Special Police Establishment who undertook investigation of the case and failed to comply with two pre-conditions incorporated in the proviso to s. SA of the Prevention of Corruption Act, 1950, the investigation was .vitiated and. the trial ,)(' upon such investigation would be bad. .The High Court held that f the two conditions had not been complied with by the investigating officer but after considering the entire evidence observed that the alleged irregularity would not justify th<> conclusion that the non observance of the conditions prescribed in the priviso to s. SA 0 the Prevention of Corruption Act had resulted in failure of justice.

(I) Schmidt v. Sec. of State for ffome Affairs, [1969) 2 Ch. D. 149. . If H (2) [ 1962] 2 Q.B. 330@ 343, (3) p962] 2 S.C.(l.. 195,

\ PRITm PAL v. UNION" (Desai, J.) 437

This Court agreed with this conclusion. Drawing sustenance from this conclusion it was urged that irreg\llarity in the course of investi- gation, if an'y, would not vitiate the trial but in such a situation the court must examine evidence more carefully. As, we are of the opinion that the failure to comply _with the requirements of rules 22, 23 and 24 depended upon a requisition by the petitioner, his inactio_n or omission in that behalf would have no impact on the order convening the court-martial.

Reference was al_so -made to Flying Officer S. Sundarajan v. Union of India & Ors. ,( 1) where a Full Bench of the Delhi High Court held that any errnr or irregularity in complying with the procedure prescribed by rule 15_of the Indian Air Force Rules which is in pari materia whh rule 22 of the Rules would not vitiate the trial and ultimate conviction of the accused because of any error or irregularity at a stage before the accused is charged for the purpose of having the evidence reduced to writing and it will not vitiate the subsequent trial as the guilt of the accused has to be established not _D on the basis of what the commanding officer might have done or · might not have done· at the initial stage. It was further held that - any irregularity in the procedure at that initial stage might have a bearing on the veracity of witnesses examined at the .'trial or on the bona tides of the commanding officer or on the defence that may be set up by the accused at the trial but the irregularity can by no ' Ill mean·s - be regarded, as - affecting the jurisdiction of the court to > proceed with the trial. Jurisprudentially speaking the view expreseed is that Rule I 5 is directory and its contravention has no impact on the subsequent trial. Frankly, we have our reservations about the view taken by the Full Bench of the Delhi High Court but as we have held that rules 22, 23 and 24 have not been violated ori account of the failure of the petitioner to insist upon their compliarrce which it was ·obligatory upon him to do, we refrain from \~ expressing any opinion_ on this point.

Mr. Sanghi next contended that it is obligatory upon the authorities concerned to appoint 'a cou.rt of inquiry _'whenever an inquiry affects_ the character or military!reputation of a person subject to the Act and -in such an inquiry full opportunity must be afforded to such person' of being present throughout the inquiry and of making ~ I "' . (1) AIR 1970 Delhi 29._

438 SUPRBME COURT REPORTS (1983] l s.c.R

A any statement or giving any evidence be may wish to make or give· and of cross-exa;nining any witness whose evidence In his opinion · affects the character or military reputation and producing any witness in defence of bis c.haiacter or military reputation. Th~re are some provisions in ·the Act which ·order setting up of a Court of Inquiry in the circumstances and- for the purpose s,et out in the B provisions. Section 89 permits collective fines to be imposed in the circumstances therein mentioned but the same can be done after ·obtaining the ,report of court of inquiry, In other words, where it is ,_considered neceSS!lrY and permisible under the Act to impose a collective fine it can be done after obtaining the report of a court of

c inquiry whicli will presage an appointment of a such court of a inquiry.· Similarly, section 106 comprehends the appointment of a court of inquiry whc;_n any person subject to the Act &as been absent from his duty without due authority.for a period of 30 'days, an_d such court is required to inquire in respect", of the absence of ,., , the person and the deficiency if any in the property of the Govern- ment entrusted to his care, or in any arms, ammunition, equipment, instruments, clothing or necessaries, and if satisfied of the fact of such_ absence without due authority or other sufficient cause, the court . shall declare such absence and the _period thereof, and the said deficiency;if any the commanding officer of the corps or department to which t~e person belongs shall ·enter in the court-martial book of 'the corps or. department a record of the deciaration. A reference to E these two sections would show thaf where action cari be taken after obtaining report of the court of inquiry it has been so· specified. < Now, when an offence is committed and a trial by a general court martial is to be held, there is n0 provision which requires that a court of inquiry should be set up before the trial is directed. Mr. Sanghi, however, urged that on a correct interpretation of rule 180, it would appear· that whenever the character of a person subject to the Act is involved in any inquiry, a court of inquiry must be set up. • Rule 180 'does not bear out the submission. It sets up a stage in the procedure prescribed for the courts of inquiry, Rule 180 cannot be construed to mean that whenever or wherever· in auy inquiry in respect of any person subject to the Act his character or military reputation is likely to be affected setting up of a Court of inquiry is a sine qua non. Rule 180 merely makes it obligatory that whenver . a court of inquiry is set up and in the course of inquiry by the court . of inquiry character or military reputation of a person is likely to be effected then such a person must be given a full opportunity to H participate in the proceedings of ~our! <;>f inquiry. Cour\ of inquiry

i'RiTHiPAL v, ·IJN10N (besatJ.) . ~39

A by its very nature is likely to exa~ine certain issue generally , concerning ·a situation or persons. Where collective fine is desired to be imposed, a court of .inq\liry may. generally examine the shortfall to 'ascertain how many persons are responsible. Jn the course of· such an· inquiry there may be a distinct possibility of character or military reputation of a person subject to the Act likely B to· be affected. His participation cannot be avoided on the specious plea that no specific inquiry was direcied against the person whose character or military re1mtation is involved .. To ensure that such a person whose character or military reputation is likely to be affected ·by the proceedings of the court of inquiry should be afforded full· opportunity so that nothing is done at his back and without oppor- c tunity of participation, rule 180 merely makes an enabling provi~ sion. to ensure such participation. But it cannot 15e used to say that whenever in any other inquiry or an in'quiry before· a comman- ding officenindei:_rufo 22 or a convening officer under rule 37 of - the trial by a court mitr\ial, character or . military reputatiori of the . officer concerned is likely to be affected a prior inquiry by "the court of inquiry is sine ·qua non. Therefore, the contention being without merits must ·be negatived. .

.. It was next contended that the petitioner was not supplied the relevant documents asked for by him and that~ therefore, 'he is not E being afforded a full and adeql\ate opportunity to defend himself. Rule 33 ensures prepartion for defence. by .the ac~used person." He has a right to call witnesses in his defence. The limiied grievance is , dated November II, .1980, he requested that do~u- .that by his letter ments concerning.the case against him may .be supplied to him. He also gave the name of Sub. Gopal Chand as an essential witness. F By his letter d_ated November 14, 1980, the·petitioner requested to \ supply hi:n the copies of the documents therein listed. As the trial by the court martial has not been commenced, we are sure that the authorities concerned will supply necessary documents to the petitio- ner in order to avoid even a remote reflection that he was not given adequate opportunity to defend himself.

' prescribed In passing it is necessary to.observe tha1 lhe procedure for trial of sessions cases in Chapter XVIII of the Code of •Cri~inal. Proced]!re when compared with the procedure pr~scribed for. trial by a general court martial there is very little ~eviation or departure and n' .,

440 SUPREME COURT REPORTS [!983j l s.C.R.

A more or less the procedure appears to be fair, just and reasonable, Dr. O.P. Sharma, Judge-Advocate-General, Indian Army, in his M ilicary Law in India, p. 156, after comparing the two proce- dures observes that the procedure of .trial by court martial is almost analogous to the procedure of trial in tile ordinary criminal courts. He points out two demerits, viz., a distinct possibility of a successive B trial by a cril"inal court and a court-martial exposing the accused to the hazards of double jeopardy, and the absence of a provision for bail. The horrendous delay of trial in ordinary criminal courts has its counterpart in delay in trial by court-martial also. Save and except this deficiency and one or two of minor character both the procedures are almost identical and this aspect has to some extent G influenced our decision.· ...;: .

f Writ Petitions 1513 of 197~ and 5930 oj 1980:

Save and except the contention as to the validity of the com- position of the court martial no other specific contention was rais~d D in these tivo petitions. -

Reluctance of the apex court more concerned with civil law to interfere with the internal affairs of the Army is likely. to create a distorted picture in the minds ofthe military personnel that persons subject to Army Act are not citizens of India. It is one of the car- E dinal features of our Constitution that a person by enlisting in or entering armed forces does not cease to l)e a citizen so as to wholly deprive him of his rights under the Constitution. More so when • ·this Court held in Suni/ Batra v. Delhi ;4.dministration & Ors. (1) that even prisoners deprived of personal liberty are not wholly denuded of their fundamental rights. In the larger interest of national secu- rity and military discipline Parliament in its widsom may restrict or abrogate such rights in their application to the Armed Forces but this process should not be carried so far as io create a class of citizens not entitled to the benefits of the liberal spirit of the Consti- tution. Persons subject to Army Act are citizens of this aneient land having a feeling of belonging to the civilised community gover- ned by the liberty oriented consitution. Personal liberty makes for the worth of human being and is a cherished and prized right. Depri- vation thereof must be -preceded by an· inquiry ensuring fair, just and reasonable procedure and trial by a judge of unquestioned inte- lJ .. (1) [1979],1S.C.R.392 at 495.

1'Rl1111PAL v. dNION (Desai, J.) 441

grity and wholly unbiased. A marked difference in the procedure ·A for trial of an offence by the criminal court and the court martial is apt to generate dissatisfaction arising out of this differential treat- ment .. Even though it is pointed out that the procedure of trial by court martial is almost analoguous to the P'.ocedure of trial in the ordinary criminal courts, we must recall what Justice Willi.am B O'Douglas observed 'that civil trial i~ held in an atmosphere condu- cive .to the protection of individual rights whi_le a military trial is marked by the age-old manifest destiny of retributive justice. Very expression 'court martial' generally strikes terror in the heart ·or the person to be tried by it. And somehow or the other the trial is looked upon with disfavour·'(') In Reid v. Covart.( 2) Justice Black observed at p. U 74 as under; c "Courts-martia,l are typically ad hoc b~dies appointed by a military officer from among his subordinates. They have always b'een subject to varying degrees of "comtiiand influence". In essence, these tribunals are simply executive tribunals whose personnel are in the ·executive chain of command. Frequently; the members of the court-martial must look to the appointing officer for pro motions,· advan- tageous assignments and efficiency ratings-in short, for their • future progress in the service. Conceding to military per- sonnel that high degree of honesty and sense justice which nearly all of them undoudtedly have, the members of a court-martial, in the .nature of things, do not and cannot .have the Independence of jurors drawn from the general public or of civilian judges." ·

"Absence of even one appeal with power to review evidence; legal for- F mulation, conclusion and adequacy or otherwise cif punishment is a glaring lacuna i~ a country where a cou.nterpart civilian convict can prefer appeal after appeal to hierarchy of courts. Submission that full review of finding and/or. sentence in confirmation proceeding under section 153 is provided for is poor solace. _A hierarchy of courts with appellate powers each having its own power of judicial review has of course been found to. be counterproductive but the converse is eq11ally distressing in that there ·is not ·even a single . .. - (1) -Tough Test for Militaty Justice; Time Magazine. pp. 42 & 43 1 . (2) IL. Ed. 2d. 1)48,

442 SUPREME COURT REPORTS [1983} 1 s.C.H.,

A judicial review. With the expanding horizons of fair play in action even in administrative decision, the universal decleration of human rights and retributive justice being relegated to the uncivilsted days, a time has come when a step is required to be taken for at least one 1 review and it must truly be a judicial review as and by way of appeal to a body composed of non-military personnel or civil personnel. 8 Army is always _on al~rt for repelling external aggression and supres- sing internal disorder so that the peace loving citizens enjoy a social order based on rule of law; the same cannot be denied to the protec- . tors of this order. And it must be realised that an appeal from Ceaser to Ceaser's wife ... confirmation proceeding under section 153- has been condemned as injudicious and merely a lip sympathy to c form. The core question is whether at least there should be one appeal to a bo_dy composed' of non-military personnel and who would enjoy the right of judicial review both on law and facts as also determine the adequacy of punishment being commensurate with tlie gravity of the offence _charged. Judicial approach by people well- versed inobjective analysis of evidence trained by experience to look 0 at facts and law objectively, fair play and justice cannot always be sac;ificed at the alter of military dlscipli~e. · Unjust decision would be subversive of discipline. There must be a judicious admixture of both. And nothing revolutionary is being suggested. Our Army Act was more or less modelled on the U.K. Act. Three decades of its working with winds of change blowing _over the world necessitate E a second look so as to bring it in collformity Y(ith liberty oriented consitution and rule of law which is the uniting and integrating force in our political society. Even U.K. has taken a step of far reaching importance for rehabilitating the confidence of the Royal Forces in respect of jud.icial review of deCisions of court-martial. U.K. had enacted a Court Martial (Appeals) Act of 1951 and it has beeo exten- F sively amended in court Martial (Appeals) Act, 1968. Merely • providing an appeal by itself may not be very re-assuring but the -' persona al of the appellate cmi~t must inspire confidence. The court martial appellate Court consists of the ex-offido and ordinary judges G · of the Court of Appeal, such- of the judges of the Queen's Bench ' Division as the Lord ·Chief Justice may nominate after consultation with th> Master of the Rolls, such of the Lords, Commissioners of Justiciary in Scotland as the Lord Chief Justice generally may n9mi- nate, such judges of the Supreme Court of the Northern .Ireland as the Lord Chief Justice of Northern Ireland may nominate and such, of the persons of legal experience as the Lord Chall'Cellor may

i>Rl,THI PAL •. UJ'>llON (besai J.) A appoint. The court martial appellate court has power to determine · any question necessasy to be determined in order to ~do justice in the case before the court aµd may authorise a new trial where the con- viction is qua~hed in the light of fresh evidence. The court also has power Inter alia, to orger production of documents or exhibit~on­ nected with ·the proceedings, order the attendance of witnesses, . B receive evidence, obtain reports and the Ii ke from the. me.mbers of the court martial or the person who acted a Judge-Advocate, order a reference of any question to a Special Commissioner for Inguiry and appoint a person wit)! special expert knowledge to act as an 11ssessor,(!) Frankly the appellate court has power of full judicial review unhampered by any' ·procedural clap trap. c Turning towards the U.S.A., a reference to Uniform Code of Military Justice Act, 1950, would be instructive. A provisioh has been made for setting up of a court of military appeals. The Act contained many· procedural reforms and due process safeguards not then guaranted in civil courts. · To cite one example, the tight to D legally qualified counsel was ma4e mandatory in general court- .martial cases I 3 years before the decision of the Supreme C._onrt in Gideon v. Waimyriget,( 2) Between 1950 and 1968 when the Adminis- tration of Justice Act, 1968, was· Introduced, many advances were made in the• administration of justice by civil courts but theyf were not reflected in military court proceedings. To correct '.these deficien.- E cies the Congress enacted Military Justice Act, 1968, the salient features of which are : (I) a right to legally qualified coun.sel guar- anteed to an accused before any special court martial; (2) a military judge can in certain circumstances conduct the trial a.lone and the accused in such a situation is given •the option after learning the ideptity of the military judge of requesting for the trial· by the judge F ··~ alone. A ban bas been imposed on command interference with military justice, etc.:· Ours is still .an antiquated ·system. The wind of change blowing over the country has not permeated the close and • sacrosanct precincts of the Army. · If in civil courts the universally ·accepted dictum is that justice must no.t only be done but it must seem to be done, the same holds good with all 'the greate~ vigour In' G case of court martial where the judge and the accused done the same dress, have the same mental discipline, have· a strong hierarchical sulijugation and a feeling ·~f bias in such circumsta,nces is irremove- H (I) Halsbury"s Laws of Eogland, 4th Ed!'. Para, 954-5_5, pp. 458-59. wm~~ ·

444 SUPREME COURT REPORTS [1983) I s.c.R. A able. We, therefore, hope and believe that the changes all over the English speaking democracies ~ill awaken onr Parliament to the changed valne system. In this behalf, we would like to draw· poin- ted attention of th_e Government to the glaring anom.aly that Courts Martial do not even write a brief reasoned order in support of their conclusion, even in, cases. in which. they impose the death sentenc~. B This must be remedied in order to ensure that a disciplined and dedicated Indian Army may not. nurse a grievance that the substance of justice and fair play is denied to it.

With'these observations we-dismiss all the three petitions and c vacate all interim orders. There shall be no order as to costs.

P.B.R. - Petitions.dismissed. ,