HC upholds constitutional validity of Rule 147-A of Army Rules

Srinagar, May 14: The High Court of J&K and Ladakh Thursday upheld the constitutional validity of Rule 147-A of the Army Rules 1954, which restricts issuance of certified copies of court martial proceedings where these are held to be against the interests of national security or friendly relations with foreign states.

A Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar upheld the validity of the Rule in response to a plea calling in question the orders passed in April 2024 by the Armed Forces Tribunal Bench at Srinagar.

The aggrieved petitioners had assailed the tribunal’s April 23 order dismissing their appeal against conviction by Summary General Court Martial on the ground that the same was not accompanied by a certified copy of the conviction order.

The petitioners’ contention was that the proceedings of the court martial were never supplied to them as the authorities invoked Rule 147-A of the Army Rules.

They also called in question the constitutional validity of the provision by arguing that it violated Articles 14 and 21 of the constitution. 

Moreover, their argument was that protection under Article 33 extends only to laws enacted by Parliament and not to subordinate legislation like rules.

While dealing with the plea, the court noted that the “question that arises for determination is whether Section 147-A which prima facie tramples the right of a person to fair trial and take recourse to appropriate legal proceedings and, thus, offends Article 14 and 21 of the Constitution of India is saved by Article 33 of the Constitution of India”.

“Article 33 which is contained in Part-III of the Constitution of India is itself a part of the Chapter of Fundamental Rights,” it said.

The Union of India defended the provision, with the contention that the Central Government had certified that supplying the proceedings would be against national security interests and, therefore, copies were legitimately withheld.

The court after examining the provisions, observed that the Army Rules, framed under Section 191 of the Army Act, have the force of law and are therefore protected under Article 33 of the constitution.

The court reiterated that the expression “law” used in Article-33 encompasses the rules made by the government under the delegated authority conferred upon it by the act framed by the Parliament.

However, the High Court found fault with the Armed Forces Tribunal for dismissing the petitioners’ appeal solely for want of certified copies despite the fact that copies had been denied under Rule 147-A itself.

The tribunal ought to have summoned the court martial records in a sealed cover and examined the appeal on merits instead of rejecting it on technical grounds, it said.

The court set aside the tribunal’s order and restored the petitioners’ appeal and directed the Tribunal to hear the matter afresh after summoning the Summary General Court Martial record.

Moreover, the court directed that the petitioners or their counsel be allowed to inspect the proceedings strictly in accordance with Rule 147-A and subject to conditions prescribed under the rule.