SEP PAWAN KUMAR RATHORE Vs. UNION OF INDIA

JUDGEMENT

(1.) By means of the present application the Petitioner has applied for being released on bail till the finalisation of the writ petition, in which a prayer has been made for the issuance of an appropriate writ quashing the proceedings and decision of the General Court Martial. The Petitioner also prays for his reinstatement in service with all consequential benefits as also for the quashing of the impugned Order dated 29.11.2006 which confirmed the findings of the Court of Inquiry sentencing him two years rigorous imprisonment and dismissal from service. The Writ Petition is still to be admitted. Learned counsel for the Petitioner has contended that at the present moment the Petitioner has already undergone custody for fifteen months and would be due to be released from Jail in March, 2008 after deducting jail remissions. The argument is that since the writ petition is likely to be decided after the Petitioner has undergone his sentence, the prayers pertaining to his release would be rendered infructuous. Hence he is entitled to being enlarged on bail. It is contended by Mr. Dalal that if the period of incarceration is completed by, the Petitioner cannot be adequately compensated in terms of money if the writ petition is eventually allowed. The argument is palpably attractive, but the answer would depend on whether the Petitioner has an established and vested right to assail the sentence of the Court Martial by means of a writ petition, even though an appeal has not been provided for by Parliament.

(2.) The Petitioner also asseverates that the General Officer Commanding 31 Armoured Division had rejected the Petitioner's Appeal for Suspension of Sentence vide Order dated 17.7.2007 holding that since "the petitioner has been convicted by General Court Martial on grave charges for committing theft of property belonging to the government and there being sufficient evidence on record to sustain his conviction." The prayer was not meritorious.

(3.) The Army Act, 1950 (hereinafter referred to as the Act) makes no provision for the filing of an Appeal against the sentence of a Court-Martial other than Section 164, and annulment of proceedings under Section 165. It is in this context that learned counsel for the Petitioner has relied on the poignant, yet unheeded, remarks made in Union of India VS. Charanjit Singh Gill, JT 2000 (5) SC 135. This decision, in turn, refers back to a decision in Lt. Col. Prithi Pal Singh Bedi VS. Union of India, (1982) 3 SCC 140 and Sunil Batra VS. Delhi Administration, 1979 (1) SCR 394. In Bedi the Supreme Court had recorded these pithy observations which were extracted by their Lordships in Gill. 44. 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 of the military personnel that persons subject to Army Act are not citizens of India. It is one of the cardinal features of our Constitution that a person by enlisting in or entering Armed Forces does not cease to be a citizen so as to wholly deprive him of his rights under the Constitution. More so when this Court held in Sunil Batra v. Delhi Administration, that even prisoners deprived of personal liberty are not wholly denuded of their fundamental rights. In the larger interest of national security and military discipline Parliament in its wisdom may restrict or abrogate such rights in their application to the Armed Forces but this process should not be carried so far as to create a class of citizens not entitled to the benefits of the liberal spirit of the Constitution. Persons subject to Army Act are citizens of this ancient land having a feeling of belonging to the civilised community governed by the liberty-oriented constitution. Personal liberty makes for the worth of human being and is a cherished and prized right. Deprivation thereof must be preceded by an enquiry ensuring fair, just and reasonable procedure and trial by a judge of unquestioned integrity and wholly unbiased. A marked difference in the procedure for trial of an offence by the criminal court and the court martial is apt to generate dissatisfaction arising out of this differential treatment. Even though it is pointed out that the procedure of trial by court martial is almost analogous to the procedure of trial in the ordinary criminal courts, we must recall what Justice William O'Douglas observed : "[T]hat civil trial is held in an atmosphere conducive to the protection of individual rights while a military trial is market by the age-old manifest destiny of retributive justice. Very expression 'court martial' generally strikes terror in the heart of the person to be tried by it. And somehow or the other the trial is looked upon with disfavour." In Reid v. Covert, Justice Black observed at page 1174 as under: Courts martial are typically ad hoc bodies appointed by a military officer from among his subordinates. They have always been subject to varying degrees of "command 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 promotions, advantageous assignments and efficiency ratings " in short, for their future progress in the service. Conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly 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 formulation, conclusion and adequacy or otherwise of punishment is a glaring lacuna in a country where a counterpart 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 counter-productive but the converse is equally distressing in that there is not even a single judicial review. With the expanding horizons of fair play in action even in administrative decision, the universal declaration of human rights and retributive justice being relegated to the uncivilised days, a time has come when a step is required to be taken for at least one 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. Army is always on alert for repelling external aggression and suppressing internal disorder so that the peace-loving citizens enjoy a social order based on rule of law; the same cannot be denied to the protectors 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 form. The core question is whether at least there should be one appeal to a body 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 the gravity of the offence charged. Judicial approach by people well-versed in objective analysis of evidence trained by experience to look at facts and law objectively, fair play and justice cannot always be sacrificed at the altar of military discipline. Unjust decision would be subversive of discipline. There must be a judicious admixture of both.