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

Jammu and Kashmir High Court recently declared Rule 129 of Border Security Rules ultra vires the Constitution of India while observing that the parliament cannot curtail the Fundamental Rights of the Armed Forces unless it is required to ensure proper discharge of their duties. 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...

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

Zeb Hasan

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