Holding

A Judge‑Advocate must not be of lower rank than the officer being tried, unless officers of that rank are unavailable and the convening order records such non‑availability; otherwise the court‑martial proceedings are invalid.

Summary

The respondent, a Major in the Indian Army, was tried by a General Court Martial (GCM) for offences under Sections 39(1) and 63 of the Army Act. The GCM appointed a Captain as Judge‑Advocate, a rank lower than the accused. The GCM convicted and sentenced the Major, the sentence was later revised to dismissal and confirmed. The respondent challenged the proceedings, and the Calcutta High Court set aside the GCM order on the ground that a Judge‑Advocate lower in rank than the accused could not participate. On appeal, the Supreme Court held that a Judge‑Advocate, though not a formal member of the court, is an integral part of it and must not be of lower rank than the officer being tried unless officers of the required rank are unavailable and this is recorded in the convening order. Consequently, the High Court’s decision was affirmed and the appeal dismissed.

Issues considered

The eligibility and rank requirement for a Judge‑Advocate in a General Court Martial under Army Rules 39, 40 and 102.
Whether a Judge‑Advocate of lower rank than the accused invalidates the court‑martial proceedings.
The legal effect of Note 2 to Rule 102 and its relationship to the statutory rules.
The applicability of the de facto doctrine to invalidate or uphold the findings of a court‑martial where the Judge‑Advocate’s appointment is defective.

Legislation cited

Army Act, 1950s. 108, s. 109, s. 110, s. 112, s. 118, s. 129, s. 130, s. 153, s. 158, s. 160, s. 162, s. 191, s. 192, s. 39(1), s. 63

Subjects

Judge‑AdvocateGeneral Court MartialArmy ActRank eligibilityDisqualificationRule 39Rule 40Rule 102De facto doctrineMilitary justiceAppellate jurisdiction

Judgment

UNION OF INDIA AND ANR. A
v.
CHARANJIT S. GILL AND ORS.

APRIL 24, 2000

[G.B. PATTANAIK, RP. SETHI AND SHIVARAJ V. PATIL, 11.] B

Anny Act, 1950-Sections 39(1) & 63-Anny Rules, 1954-Rules 39, 40
& 102-Court Martial pmceedings-Judge-Advocate lower in rank than the
accused officer-Whether permissible-Held, Judge-Advocate though not
forming part of the court, yet being an integral part of it should not be an C
officer of a rank lower than the officer facing the trial, unless the officer of
such rank is not available and the opinion regarding non-availability is
specifically recorded in the convening order.

Rules 39, 40(2) 102 & 103-Judge-Advocate-Disqualification of-In
court martial proceedings-An officer who is disqualified to be part of court D
martial is also disqualified fmm acting and sitting as Judge-Advocate at court
martial-If a fit person is not appointed as a Judge-Advocate, the proceedings
of the court cannot be held to be valid.

Rules 39, 40 & 102--Notes appended to the rules-Whether can have the
effect of rules or regulations-Held, No-No power is conferred on the Central E
Government for issuing notes or issuing orders which would have the effect of
rules made under the Army Act, 1950.

Court Martial-Are not courls in the strict sense of the term-The pro-
ceedings before the court mania[ are more administrative in nature and of
executive type.
F

General Court Martial (GCM) was convened to try the respondent,
wherein he was found guilty and hence subjected to sentence. The Confirm-
ing Authority, to whom the proceedings were transmitted for confirmation,
found the sentence to be inadequate and the refore directed the GCM to G
reconsider the matter. GCM, after reconsidering the matter, revoked its
"°. earlier order and passed fresh order dismissing the respondent, which was
also made subject to confirmation.

Respondent filed Writ Petition before High Court against the order
of the GCM dismissing him. During pendency of the Writ Petition the order H
245
246 SUPREME COURT REPORTS [2000] 3 S.C.R.
A of the GCM was confirmed and subsequently the writ petition was dis-
missed by the Single Judge.

Respondent preferred appeal before the Division Bench of the High
Court, which was allowed on the ground that the Judge Advocate being
lower in rank to the accused officer, should not be able to take part in GCM.
B
In appeal to this Court, the appellant contended that the Judge-
Advocate being only a Legal Adviser and not a member of the Court
Martial, his rank is not material for being appointed as such to assist the
GCM; that under the Army Act, Rules and Regulations made thereunder,
c there was no obligation for the appellants to appoint a Judge-Advocate who
should have been senior in rank to the accused; that there are separate
provisions under the Act, Rules and Regulations for members and Judge-
Advocate at GCM laying down their eligibility, disqualifications, duties,
etc.; that as the officers of the same or higher rank than the officers facing
trial are not available, the interpretation rendered by the Division Bench
D
would render the holding of Court Martials impossible; and that since Note
2 at the foot of Rule 102, having the force of law has been followed by the
army authorities and thus disqualifications of a Judge-Advocate in a Court
Martial are referable to Rule 39(2) alone which cannot be further stretched
to Rule 40(2).
E
The Respondent contended that the combined reading of Rules 39, 40
and 102 makes it clear that if the Judge-Advocate is lower than the accused
facing trial in GCM, the proceedings are liable to b~ quashed; that though,
technically the Judge-Advocate is an adviser to the prosecution, yet in .
p practice he wields a greatinfluence upon the verdict of the court in view of
the powers conferred upon him under the Act and the Rules; and that the ..jt-
Notes not being passed by the Parliament and having not vetted even by the
Ministry of Law and Justice or by the Law Commission, cannot be held to
be law. "'

G Dismissing the appeal, the Court

""'
HELD 1.1. The judge-advocate though not forming a part of the ""f·
court, yet being an integral part of it is required to possess all such
qualifications and be free from the disqualifications which relate to the
H appointment of an officer to the court-martial. In other words a judge-
U.0.1. v. C.S. GILL 247
advocate appointed with the court-martial should not be an officer of a A
rank lower than that the officer facing the trial unless the officer of such
rank is not (having due regard to the exigencies of public service) available
and the opinion regarding non-availability is specifically recorded in the
convening order. [270-C-D]

1.2. It is true that Judge-Advocate theoretically performs no function
B
as a judge but it is equally true that he is an effective officer of the court
conducting the case against the accused under the Act. It is his duty to
inform the court of any defect or irregularity in the charge and, in the
constitution of the court or in the proceedings. The quality of the advise
tendered by the Judge-Advocate is very crucial in a trial conducted under c
the Act. With the role assigned to him a Judge-Advocate is in a position to
sway the minds of the members of the court-martial as his advise or verdict
cannot be taken lightly by the person composing the court who are admit-
tedly not law knowing persons. [263-H; 264-A-B]
D
R v. Linzee, (1956) 3 All E.R. and S.N. Mukherjee v. Union of India,
[1990) 40 sec 594, referred to.

1.3. A combined reading of Rules 39, 40 and 102 suggest that an
officer who is disqualified to be a part of as a Judge-Advocate at the court
martial is also disqualified for acting and sitting as a Judge-Advocate at the E
court martial. It follows, therefore, that if an officer lower in rank than the
officer facing the trial cannot become a part of the court martial, the officer
of such rank would be disqualified from acting as a Judge-Advocate at the
trial before a GCM. Accepting a plea to the contrary, would be invalidating
the legal bar imposed upon the composition of the Court in sub-rule (2) of p
Rule 40. [266-E-F]

1.4. Ha 'fit person' is not appointed as a Judge-Advocate, the pro-
ceedings of the court martial cannot be held to be valid and its finding
legally arrived at. Such an invalidity in appointing an 'unfit' person as a
. Judge-Advocate is not curable under Rule 103 of the Rules. Ha fit person G
possessing_requisite qualifications and otherwise eligible to from part of the
General Court Martial is appointed as a Judge-Advocate and ultimately
some invalidity is found in his appointment, the proceeding of the court
martial cannot be declared invalid. A ''fit person" mentioned in Rule 103 is
referable to Rules 39 and 40. [266-A-B] H
248 SUPREME COURT REPORTS [2000] 3 S.C.R.
1.5. The purpose and object of prescribing the conditions of eligibility ~-
A
and qualification along with desirability of having members of the court
martial of the rank not lower than the officer facing the trial is obvious. The
law makers and the rule framers appear to have in mind the respect and
dignity of the officer facing the trial till guilt is proved against him by not
exposing him to humiliation of being subjected to trial by officers of lower
B
rank. The importance of the Judge-Advocate as noticed earlier being of a
paramount nature requires that he should be such person who inspires
confidence and does not subject the officer facing the trial to humiliation
because the accused is also entitled to the opinion and services of the Judge-
Advocate. Availing of the services or seeking advise from a personjuniorin
c rank may apparently be not possible ultimately resulting in failure of
justice. [266-H; 267-A-B]

1.6. Sub-rule (2) of Rule 40 itself gives a discretion to the convening '(
officer who is authorised 'to appoint a member of the court-martial or
D judge-Advocate who is lower in rank than t~e officers facing the trial, if he
is of the opinion that officer of such rank is not (having due regard to the
exigencies of the public service) available, subject to a further condition
that such opinion is required to be recorded in the convening order. It
implies, therefore, that the provisions of sub-rule (2) of Rule 40 are not
mandatory because they, give a discretion to appoint a member of the court
E martial or a Judge-Advocate who is lower in rank than the officer facing
the trial under the circumstances specified. Rule 39, admittedly, has no
exception and is thus mandatory.[267-D-E]

2.1. When Rule 39 read with Rule 40 imposes a restriction upon the
F Government and a right in favour of the person tried by the court-martial
to the effect that a person lower in rank shall not be a member of the court
martial or be a Judge-Advocate, the insertion of Note 2 to Rule 102 cannot
be held to have the effect of a Rule or Regulation. It appears that the 'notes'
have been issued by the authorities of the Armed Forces for the guidance of
the officers connected with the implementation of the provisions of the Act
G and the Rules and not with the object of supplementing or superseding the
statutory Rules by administrative instructions. (270-A-C]
.,.,
2.2.•No power is conferred upon the Central Government of issuing
Notes or issuing orders could have the effect of the Rules made under the
H Act. Rules and Regulations or administrative instructions can neither be
U.0.1. v. C.S. GILL 249
supplemented nor substituted under any provision of the Act or the Rules A
.A and Regulations framed thereunder. The administrative instructions issued
or the Notes attached to the Rules which are not referable to any statutory
authority cannot be permitted to bring about a result which m.ay take away
the rights vested in a person governed by the Act. The Government, how-
ever, has the power to fill up the gaps in supplementing the rules by issuing
B
instructions if the Rules are silent on the subject provided the instructions

..,. issued are not inconsistent with the Rules already framed. (269-F-G]

3. The court martials under the Act are not courts in the strict sense
of the term as understood in relation to implementation of the civil laws.
The proceedings before court martial are more administrative in nature c
and of the executive type. Such courts under the Act, deal with two types of
offences, namely, (1) such acts and omissions which are peculiar fo the
Armed Forces regarding which no punishment is provided under the ordi-
..... nary law of the land and (2) a class of offences punishable under the Indian
Penal Code or any other legislation passed by the Parliament. (260-D-E]
D
4. Army Act, 1950 has been found to be suffering from various draw-
backs. Even today the law relating to Armed Forces remains static which
requires to be changed. In the absence of effective steps taken by
the Parliament and the Central Government, it is the constitutional
... obligation of the courts in the country to protect and safeguard the
E
constitutional rights of all citizens including the persons enrolled in the
Armed Forces to the extent permissible under law by not forgetting the
paramount need of maintaining the discipline in the Armed Forces of the
country. (260-C-D]

Prithi Pal Singh Be div. Union ofIndia & Ors., (1982) 3 SCC 140, relied p
-+ --;.. on.

5. The judgments rendered by the court martial which have attained
finality cannot be permitted to be re-opened on the basis oflaw laid down in
this judgment. The proceedings of any court-martial, if already challenged
on this ground and are pending adjudication in any court in the country G
would, however, be not governed by the principles of'defacto doctrine'. No
pending petition shall, however, be permitted to be amended to incorporate
the plea regarding the ineligibility and disqualification of Judge-Advocate ·
on the ground of appointment being contrary to the mandate of Rule 40(2).
This would also not debar the Central Government or the appropriate H
250 SUPREME COURT REPORTS [2000] 3 S.C.R.
A authority in passing fresh orders regarding appointment of the fit persons ~
as Judge-Advocates in pending court-martials, if so required. (274-D-E]

Gokaraju Rangaraju v. State ofAndhra Pradesh, (1981) 3 SCC 132 and
State of U.P. v. Rafiquddin, (1987) Supp. SCC 401, relied on.

B CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2865 of 2000.

From the Judgment and Order dated 24.4.99 of the Calcutta High Court
in M.A.T. No. 2181 of 1997.

K.N. Raval, Additional Solicitor General, P.P. Malhotra, Krishna
C Venugopal, T.A. Khan, B.K. Prasad and A.K. Sharma for the appellants.

Ranjit Kumar for the Respondents.

The Judgment of the Court was delivered by

D SETHI, J. Leave granted.

Finding that the Judge-Advocate was lower in rank to the accused facing
trial before a General Court Martial (hereinafter referred to as "GCM"), the
Division Bench of the High Court set aside the order of the Trial Court and
the entire Court Martial proceedings conducted against the respondent No. l.
E The Bench, however, observed that the quashing of the proceedings of the
GCM will not prevent the authorities concerned to initiate fresh court martial
proceedings if they are so advised in accordance with law and also in the light
of the judgment delivered. Feeling aggrieved by the aforesaid judgment the
present appeal has been filed with a prayer for setting aside the impugned
F judgment and upholding the order of the GCM as well as the learned Single
Judge.
....
f

The relevant and almost admitted facts for determining the controversy
in this appeal are that the first respondent joined the Indian Army as a
Commissioned Officer in 1971 and was promoted to the rank of Major in
G 1984. He was posted at Fort William, Calcutta in April, 1990. While attached
with 235 IWT company, Engineers, the respondent No.1 was alleged to have
absented himself without leave on four occasions which was an offence under
Section 39(1) of the Army Act. He was also charged under Section 63 of the
Army Act for violation of good order and military discipline. A GCM was
H convened by the General Officer Commanding (GOC), Bengal Area by his
U.0.1. V. c.s. GILL, [SETHI, J.] 25I
order dated 23rd December, 1991. The court martial comprised of Col. A
Rabinder Bahadur Singh as Presiding otlicer and Col. Kunjachen Puthenveetil
Sebastian, Col. Prakash Nambiar, Col. Mahitosh Deb and Major Kadam Ne~ji
Kesharuo as Members. Capt. Vashishta Arun Kumar, Dy. Assistant Judge
Advocate General was appointed as Judge Advocate in the court martial
proceedings. The respondent No. l was found guilty of four out of five charges
by the GCM and was sentenced to forfeit six months service for the purposes
B
of promotion. The order of conviction and sentence was, however, made
subject to the confi1mation by the Confirming Authority to whom the
proceedings were transmitted by the GCM in terms of Section I53 of the Anny
Act. The Confirming Authority felt that the sentence awarded to the respond-
ent No.I by the GCM was grossly inadequate and inappropriate which c
required review. The order of the Con.firming Authority dated 2.5.1992 was
conveyed to the GCM which on I9.5. I992 upon re-consideration revoked the
earlier sentence and passed a fresh order of sentence of dismissing the
respondent No. I from service. This order was also made subject to confinna-
tion by the Confirming Authority. D

Aggrieved by the order of conviction and sentence passed by the GCM,
the respondent No.I filed writ petition being CO No.7102(W) of I992 in the
High Court at Calcutta praying therein for quashing orders dated 23. I2. I99 I,
10.2.I992, 2.5.I992 and I9.5.-I992. At the time of admission of the writ
petition a learned Single Judge of the High Court passed an interim order on E
29th May, I992 directing the appellants not to confirm the impugned order of
dismissal and not to take any steps against respondent No. I, without the leave
of the Court. The interim order was, however, vacated by the learned Single
Judge on I6.12.1996 allowing the Confirming Authority to complete the
process of confomation and passing appropriate orders. Consequently, the F
GCM proceedings were confirmed on 17.12.I996 and the respondent No.I
was dismissed from service on 18. I2. I996. The writ petition filed by the first
respondent was dismissed by the learned Single Judge on 3rd July, I997.
Feeling aggrieved by the judgment of the learned Single Judge the respondent
No. I preferred appeal b~ing MAT No.2LM/97 before the Division Bench
which was allowed vide the order impugned in this appeal. G

In his writ petition the respondent No. I is stated to have alleged that in
the year I987-88 when he was posted as Ganison Engineer in Jammu &
Kashmir State under the Northern Command, he had pointed out to the higher
authorities some embezzlement instances involving Rs. 22.49 lacs in which H
~

252 SUPREME COURT REPORTS [2000] 3 S.C.R.
A Major S.K. Datta and Col. S.C. Gulati were allegedly involved. He alleged that
;._
because of his reporting the case of embezzlement he incurred animosity of
the persons in the higher echelons of the Anny. He submitted that in the year
1990 he had made a direct complaint to the Chief of the Anny Statt: Anny
Headquarters, New Delhi with regard to the aforesaid embezzlement which,
according to him, generated further feelings of animosity and ill-will against
B
him. He was attached to 235 IWT Company on 14th September, 1990 and
allegedly not given any duty after attachment to the said unit. On 22nd -..(--
October, 1990, the Commanding Officer of 235 IWT Company called upon
the respondent No. l to produce the evidence by 25th October, 1990 in
connection with his allegations of embezzlement. At that time the Company
c to which he was attached was stationed at Alambazar, near Dakshineswar, just
outside Calcutta and his family was residing at Fort Williams, Calcutta. He was
served with a chargesheet on 18th November, 1991 signed by the Command-
ing Officer, 121, Infantry Battalian (TA) which was endorsed by the General y
Officer Commanding, Bengal Area. Though the respondent No.I was posted
to 235 IWT Company vide order dated 12th September, 1990 he was attached
D
on 23rd March, 1991 under the provisions of Anny Instructions 30 of 1986
to 121 Infantry Battalion (TA) till finalisation of the disciplinary proceedings
which had been initiated against him. The charge-sheet dated 18th November,

E
1991 disclosed the commission of offences punishable contrary to Sections
39(a) and 63 of the Anny Act. The respondent No. l in his petition had prayed
for quashing and setting aside of orders dated 23rd December, 1991 convening
the GCM, order dated 10th February, 1992 finding the respondent No.I guilty
yl

-
and imposition of the sentence by GCM, order dated 2nd May, 1992 exercising
the revisional jurisdiction by the GOC, BA and order dated 19th May, 1992
revising the initial sentence and dismissing the respondent No. l from service.
F The grounds of challenging the aforesaid orders were as under: .y
l-
"1. The composition of the GCM, as was determined by the Conven-
ing Order dated 23rd December, 1991 was bad in law because Captain
Arun Kumar Vashistha was not qualified to be appointed as a Judge

G
Advocate in the said GCM. This ground of challenge is based on two -·
counts, firstly because no officer of a rank inferior to the accused can
be appointed as a Judge - Advocate in GCM and secondly the --f
participation of the Judge-Advocate in the proceedings held on 18th
and 19th May, 1982 upon revision was bad since he was not entitled
to take part in the proceedings after 10th February, 1992 when the
H GCM proceedings had originally stood concluded.
U.O.I. v. C.S. GILL [SETHI, J.] 253

.. ~ 2. GOC, BA had no jurisdiction to either convene the GCM vide his
order da~ 23rd December, 1991 or to pass the order dated 2nd May,
A

1992, as he was neither a properly appointed nor a properly desig-
nated Convening Authority for the purposes of convening a GCM nor
could he be deemed considered to be a legally and validly appointed
conforming authority for the purposes of exercising the power under
B
Section 160 of the Army Act. In either event, his act of convening
--)•'
the GCM was illegal and therefore the proceedings of the GCM on
that ground were void ab initio. Similarly since he did not have any
power to acts a confirming ·authority, he had no jurisdiction to
exercise any power under section 160 of the Army Act and order
revision of the sentence. Reliance was placed upon Regulation 472 c
of the Regulations fof the Army in support of this contention.

3. TI1e order dated 2nd May, 1992 was bad in law because while
exercising revisional jurisdiction under Section 160 of the Army Act,
the GOC, BA not only expressed his views and opinion about the
D
merits of the case but the order amounted to almost a direction upon
the GCM, and the GCM comprising, as it were, of the officers
subordinate to GOC, BA had no option but to revise the sentence, as
was desired by GOC, BA.

--- 4. GOC, BA was also not an appropriate Convening Authority for the E
purposes of convening a GCM as the petitioner was not serving under
him. Since the petitioner was serving in the Head Quarter, Eastern
Command, it was only GOC-in-C who could be considered to be the
appropriate, convening authority in respect of the petitioner for
convening a GCM. Merely because the petitioner was attached to a
F
unit which was under the control of GOC, BA, that by itself did not
make GOC, BA the duly appointed convening authority for conven-
ing a GCM. Reliance was placed upon the contents of warrant A-1
appointing GOC, BA and GOC-in-C as/espective convening authori-
ties.
G
5. The sentence of dismissal for a minor offence like being absent
without leave, and for committing an offence under section 63 of the
Army Act was highly and grossly disproportionate to the gravity of
the offence. Even if the proceedings of the GCM and the finding of
"guilty" was to be upheld by this court, the initial sentence of
H
254 SUPREME COURT REPORTS [2000] 3 S.C.R.
A forfeiture of six months of service for the purpose of promotion was
a reasonable punishment in the facts and circumstances of this case.

6. Distinction has to be drawn between "absent from a place" and
absence from duty" because in the facts and circumstances in which
the petitioner was placed, the petitioner was not allocated or entrusted
B with any duties and therefore if he absented from a place, without
there being any duty that he was to perform, Section 39 of the Anny
Act could not be attracted in his case and therefore he could not be
held guilty of the charges levelled against him.

c 7. The appropriate Confirming Authority have been prescribed in
Regulation 472 and even though this Regulation is not ~tutory in
character and has not been issued under Section 192 of the Anny Act,
yet it amounting to an executive instruction has the force of law and
thus supersedes the warrants issued by the Central Government under
Section 164 of the Anny Act. The contention is that the authorities
D prescribed in Regulation 472 alone are competent to act as confirming
or convening authorities and that the authorities appointed under the
warrants by the Central Governmen.t in exercise of the powers vesting
in it under Section 154 have no jurisdiction to act as such.

I E 8. The order dated 17th December, 1996 is bad because it was passed
without affording the petitioner an opportunity of submitting a pre-
confirtnation representation, as was directed by this court on 16th
December, 1996."

None of the grounds found favour with the learned Single Judge who
F after.hearing dismissed the writ petition. The respondent No.1 was, however,
given two weeks time to vacate the accommodation occupied by him upon his
giving an undertaking. The appeal filed against the judgment of the learned
Single Judge was allowed holding:

"However, without deciding any other point we are of the view that
G
a Judge-Advocate being lower in rank to an accused officer should
not be able to take part in the general court-martial proceedings for
the above reason."

Mr. Rawal, the learned Additional Solicitor General appearing for the
H appellants has vehemently argued that as the Judge-Advocate is only a Legal
U.0.1. v. C.S. GILL [SETHI, J.] 255
Adviser and not a member of the Court Martial, his rank is not material for A
being appointed as such to assist the GCM. It is ft.lrther contended that under
the Army Act, Rules and Regulations made iliereunder, there was no obliga-
tion for the appellants to appoint a Judge-Advocate who should have been
senior in rank to the accused on the analogy that the members of the court
martial who tried the accused are required to be of the same or higher rank B
to the accused officers. According to him there are separate provisions under
the Act, Rules and Regulations for members and Judge-Advocate at GCM
laying down their eligibility, disqualifications, duties, etc. Relying upon Note
2 attached to Rule 102, the learned counsel has submitted that the disquali-
fication for being a Judge-Advocate in a court martial is referable to Rule
39(2) alone which cannot be stretched further to Rule 40(2) of the Rules. It c
is contended that the Division Bench of the High Court has not properly
interpreted the provisions of Sections 113 and 129 of the Act and Rules 39,
40 and 102 of the Army Rules.

Appearing for the respondent No.1 Mr. Ranjit Kumar, Advocate has
D
submitted that the combined reading of Rules 39, 40 and 102 makes it clear
that if the Judge-Advocate is lower in rank than the accused facing the trial
in GCM, the proceedings are liable to be quashed. According to him the
provisions of Rule 39 read with Rules 40 and 102 of the Army Rules leave
no doubt that the Judge-Advocate appointed for the trial of an officer by the
GCM should be a rank not lower than that of the Officer facing the trial. He E
has submitted that though, technically the Judge-Advocate is an Adviser to the
..... prosecution, yet in practice he wields a great influence upon the verdict of the
court in view of the powers confe1red upon him under the Act and the Rules.
He has specifically refetTed to the provisions of Rules 60, 61, 62 and 105 of
the Rules to emphasise the importance of the role played by the Judge- F
Advocate during the trial in a court martial.

In order to appreciate the rival contentions of the learned counsel for the
parties it is necessary to take note of some of the relevant provisions of the
Act, the Rules and the Regulations made thereunder. The Act was enacted on
20th May, 1950 and enforced w.e.f. 22nd July, 1950 to consolidate and amend G
the law relating to the Government of the regular Army keeping i,n view the
report of the Select Committee appointed for the purpose. Prior to the
enactment of Army Act, 1950, there existed the Indian Army Act, 1911 made
and applied by the British Rulers. Feeling that some of the provisions of the
1911 Act had become out of date and insufficient for modem requirements H
256 SUPREME COURT REPORTS [2000] 3 S.C.R.
A after independence, a need for revision was felt to have become imperative for
obvious reasons. However, the scheme of the Act by and large remained the
same as was incorporated in Army Act, 1911. The Act has been found to be
suffering from various draw-backs as were pointed out by this Court in Lt. Col.
Pritfii Pal Singh Bedi v. Union of India & Ors., [1982] 3"scc 140. This Court
hoped and stressed that changes all over the English speaking democracies
B
would awaken the Parliament to the changed system as regards the Armed
Forces. Merely by joining the Armed Forces a person does not cease to be a
citizen so as to be wholly deprived of his rights under the Constitution. While
dismissing the writ petitions in that case, this Court noticed with anguish and
concern and observed:
c
"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
D 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, (1979] 1 SCR 394 that even
prisoners deprived of personal liberty are not wholly denuded of their
fundamental rights. In the larger interest of national security and
E 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 anci~nt land having a feeling of
belonging to the civilised community governed by the liberty-oriented
F
constitution. Personal lil?erty makes for the worth of human being and
is a cherished and prized right. Deprivation thereof must be preceded
by a judge of unquestioned integrity and wholly unbiased. A marked

--
difference in the procedme for trial of an offence by the criminal court
and the court martial is apt to generate dissatisfaction arising out of
G 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 that
Justice William O'Douglas observed: "[T]that civil trial is held in an
atmosphere conduciv~ to the protection of individual rights while a
military trial is marked by the age-old manifest destiny of retributive
H
U.0.1. v. C.S. GILL [SETHI, J.] 257

,J justice. Very expression 'court martial' generally strikes terror in the A
... heart of the person to be tried by it. And somehow or the other the
trial is looked upon with disfavour." InReidv. Covert, 1LEd2d 1148
= 354 US l (1957) Justice Black observed at page 1174 as under:
Court martial are typically ad hoc bodies appointed by a military
officer from among his subordinates. They have always been sub- B
ject to varying degrees of 'command influence'. Jn essence, these
-¥ tribunals are simply executive tribunals whose personnel are in
the executive chain of command. Frequently, the members of the
court marital must look to the appointing officer for promotions,
advantageous assignments and efficiency ~atings - in short, for c
their future progress in the service. Conceding to military per-
sonnel 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 inde-
pendence of jurors drawn from t11e general public or of civilian
judges. D

Absence of even one appeal with power to review evidence, legal
formulation, conclusion and adequacy of 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
E
review of finding and/or sentence in confitmation proceedings 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 adminis- F
trative decision, the universal declaration of human rights and retribu-
tive justice bemg 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
9f non-military personnel or civil personnel. Army is always on alert G
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 t11at an appeal from Ceaser to Ceaser' s wife -
confirmation proceedings under Section 153 - has been condemned
as injudicious and merely a lip sympathy to form. The core question H
258 SUPREME COURT REPORTS (2000} 3 S.C.R.
A 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 analy-
sis of evidence trained by experience to look at facts and law
B
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. And nothing ~

revolutionary is being suggested. Our Anny Act was more or less
modelled on the U.K. Act. Three decades of its working with winds
c of chang~ blowing over the world necessitates a second look so as
to bring in it conformity with liberty-oriented constitution 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 rehabili-
tating the confidence of the Royal Forces in respect of judicial review
of decisions of comt martial. U.K. bad enacted a Court Martial
D
(Appeal) Act of 1951 and it has been extensively amended in Court
Martial (appeals) Act, 1968. Merely providing an appeal by itself may
not be very reassuring but the personnel of the appellate court must
inspire confidence. The court martial appellate cpurt consists of the
ex officio and ordinary judges of the Court of Appeal, such of the
E judges of the Queen's Bench Division as the Lord Chief Justice may
nominate after consultation with the Master of the Rolls, such of the
Lords, Commissioners of Justiciaiy in Scotland as the Lord Chief
Justice generally may nominate, such Judges of the Supreme Court
of the Northern Ireland as the Lord Chief Justice of Northern Ireland
F may nominate and such of the persons of legal experience as the Lord
Chancellor may appoint. The court martial appellate court has power
to determine any question necessary to be determined in order to do
justice in the case before the court and may authorise a new trial
where the conviction is quashed in the light of fresh evidence. The
court has also power inter alia, to order production of documents or
G exhibits connected with the proceedings, order the attendance of
witnesses, receive evidence, obtain reports and the like from the
members of the court martial or the person who acted as Judge- ....
Advocate, order a reference of any question to a Special Commis-
sioner for Enquiry and appoint a person with special expert knowl-
H edge to act as an assessor (Halsbmy's Laws of England, 4th Edn.,
U.0.1. v. C.S. GILL [SETHI, J.] 259
paras 954-955 pp. 458-59). Frankly the appellate court has power to A
full judicial review unhampered by any procedural claptrap.

Turning towards the U.S.A., a refemece to Uniform Code of Military
Justice Act, 1950, would be instructive. A provision has been made
for setting up of a comt of military appeals. The Act contained many
procedmal reforms and due process safeguards not then guaranteed B
in civil comts. To cite one example, the right to legally qualified
counsel was made mandatory in general court martial cases 13 years
before the decision of the Supreme Court in Gideon v. Haiwright, 372
US 335 (1963). Between 1950 and 1968 when the Administration of
Justice Act, 1968 was introduced, many advances were made in the C
administration of justice by civil courts but they were not refle~ted
in military court proceedings. To correct these deficiencies the
Congress enacted Military Justice Act, 1968, the salient features of
which are: (1) a right to legally qualified counsel guaranteed to an
accused before any special court martial; (2) a military judge can in
certain circumstances conduct the trial alone and the accused in such D
a situation is given the option after learning the identity of the niilitary
judge of requesting for the trial by the judge alone. A ban has 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 E
Anny. If in civil courts the universally accepted dictum is that justice
must not only be done but it must seem to be done, the same holds
good with all the greater vigour in case of court martial where the
judge and the accused don the same dress, have the same mental
discipline, have a strong hierarchical subjugation and a feeling of bias
in such circumstances is irremovable. We, therefore, hope and believe F
that the changes all over the English-speaking democracies will
awaken om Parliament to the changed value system. In this behalf,
we would like to draw pointed attention of the Government of the
glaring anomaly that courts martial do not even write a brief reasoned
order in support of their conclusion, even in cases in which they G
impose the death sentence. 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."

Despite lapse of about two decades neither the Parliament nor the Central
Govemment appears to have realised their constitutional obligations, as were H
260 SUPREME COURT REPORTS [2000] 3 S.C.R.
A expected by this Court, except amending Rule 62 providing that after
recording the finding in each charge the Court shall give brief reasons in
support thereof. The Judge-Advocate has been obliged to record or caused to
be recorded brief reasons in the proceedings. Even today the law relating to
Armed Forces remains static which requires to be changed keeping in view
the observations made by this Court in Prithi Pal Singh Bedi's case (supra),
B
the constitutional mandate and the changes effected by other democratic
countries. The time has come to allay the apprehension of all concerned that
the system of trial by court martial was not the arch type of summary and
arbitrary proceedings.

c In the absence of effective steps taken by the Parliament and the Central
Government, it is the constitutional obligation of the courts ill the country to
protect and safeguard the constitutional rights of all citizens including the
persons enrolled in the Aimed Forces to the extent permissible under law by
not forgetting the paramount need of maintaining the discipline in the A:nned
Forces of the country.
D
TI1e court martials under the Act are not courts in the strict sense of the
term as understood in relation to implementation of the civil laws. The
proceedings before court martial are more administrative in nature and of the
executive type. Such courts under the Act, deal with two types of offences,
namely, (1) such acts and omissions which are peculiar to the Armed Forces
E
regarding which no punishment is provided under the ordinary law of the land
and (2) a class of offences punishable under the Indian Penal Code or any
other legislation passed by the Parliament. Chapter VI of the Act deals with
the offences. Sections 34 to 68 relate to the offences of the first description
noted hereinabove and Section 69 with civil offences which means the offence
F triable by an ordinary criminal court. Chapter VII provides for punishments
which can be inflicted in respect of offences committed by persons subject to
the Act and convicted by court martial, according to the scale provided therein.
Chapter X deals with court martials. Section 108 provides that for the purposes
of the Act there shall be four kinds of court martials, that is to say,
G (a) general court-martial;

(b) district court-martial;

(c) summary general court-martial; and

H (d) summary court-martial.
U.0.1. v. C.S. GILL [SETHI, J.] 261
Court martials can be convened by persons and authorities as specified in A
Sections 109, 110, 112 and 118 of the Act. The procedure of court martials
is detailed in Chapter XI of the Act. Section 129 mandates that every general
court-martial shall be attended by a judge-advocate, who shall be either an
officer belonging to the department of Judge Advocate-General or if no such
officer is available, an officer approved by the Judge-Advocate General or any
B
of his deputies. The accused has a right to challenge the name of any officer
composing the court martial which obviously means that no such objection can
be raised regarding the appointment of the Judge-Advocate. No findings or
sentence of a general, district or summary general court martial shall be valid
except so far as it may be confirrned as provided under the Act. Under Section
158, the confirming authority has the power to mitigate or remit the punish- c
ment awarded by the court martial or commute that punishment for any
punishment or punishments lower in the scales laid down in Section 71. Under
Section 160 the confirming authority has the power to dirt!ct a revision of the
finding of a court martial and on such revision, the court, if so directed by the
confirming authority, may take additional evidence. Any person, subject to the D
Act, who considers himself aggrieved by any order passed by the court martial
can present a petition to the officer or authority empowered to confirm any
finding or sentence of such court martial and in that case the confirming
authority may take such steps as may be considered necessary to satisfy itself
as to the correctness, legality or propriety of the order passed or as to the E
regularity of any proceedings to which the order relates. There is no provision
for preferring an appeal against the findings of the court martial.

In exercise of the powers conferred by Section 191 of the Act the
Central Government have framed the. Rules called the Anny Rules, 1954.
Chapter V of the Rules deals with the investigation of charges and trial by F
court-martial. Court-martials are convened in terrns of Rule 37. Rule 39
prescribes ineligibility and disqualification of officers for court-martial. It
reads:

"Ineligibility and disqualification of officers for court- martial - (1)
An officer is not eligible for serving on a court-martial if he is not G
subject to the Act.

(2) An officer is disqualified for serving on a general or district
court-martial if he -

(a) is an officer who convened the court; or H
262 SUPREME COURT REPORTS [2000] 3 S.C.R.
~
A (b) is the prosecutor or a witness for the prosecution; or ~

(c) investigated the charges before trial, or took down the sum-
mary of evidence, or was a member of a court of inquiry respect-
ing the matters on which the charges against the accused are
founded, or was the squardon, battery, company, or other com-
B mander, who made preliminary inquiry into the case, or was a
member of a previous court-martial which tried the accused in
respect of the same offence; or

(d) is the commanding officer of the accused, or of the corps to
c which the accused belongs; or

(e) has a personal interest in the case."

(3) The provost-marshal or assistant provost-marshal is disqualified
from serving on a general court-martial or district court-martial.
D Rule 40 provides:

"40. Composition of General Court-martial (1) A general court
martial shall be composed, as far as seems to the convening officer
practicable, of officers of different corps or departments, and in no
A
E case exclusive of officers of the corps or department to which the ,_
accused belongs.

(2) The members of a court martial for the trial of an officer shall be
of a rank not lower than that of the officer unless, in the opinion of
the convening officer, officers of such rank are not Qiaving due regard
F to the exigencies of the public service) available. Such opinion shall
be recorded in the convening order.

(3) In no case shall an officer below the rank of captain be a member
of court-martial for the trial of a field officer."

G Rule ~ provides that the order convening the court and the names of the
Presiding Officer and the members of the court shall be read over to the
accused and he shall be asked as required by Section 130 whether he has any
objection to being tried by any officer sitting on the court. Such objection
when raised is required to be disposed of in accordance with the provisions
H of Section 130. The accused before pleading to a charge, may offer a special
U.0.1. v. C.S. GILL [SETlll, J.] 263
plea to the jurisdiction of the court and if he does so, the court shall decide A
it. If the objection regarding such plea is overruled, the court shall proceed
with the trial and if such plea is allowed, the court is required to record its
reason and report to the convening authority and adjourn the proceedings
(Rule 51). Rules 52, 53, 54, 55 and 56 deal with the recording of the plea of
"guilty" or "not guilty". In case the accused pleds not guilty, the trial is to
B
commence and after the close of the case of the prosecution, the Presiding
Officer or the Judge-Advocate is required to explain to the accused that he
may make an unswom statement orally or in writing giving his account of the
subject of charges against him or if he wishes he may give evidence as witness
on oath or affirmation, in disproof of tlie charges against him or any person
to be charged with him at the same trial. After the examination of the c
witnesses, the prosecutor may make a closing address and the accused or his
counsel or the defending officer, as the case may be, shall be entitled to reply.
The Judge-Advocate is authorised to sum up in open court the evidence and
advise the court upon the law relating to the case. Rule 61 provides that the
court shall deliberate on its finding in closed court in the presence of the D
Judge-Advocate and Rule 62 provides the form, record and announcement of
finding.

Referring to various provisions of ·the Act and the Rules as noticed
earlier, the learned counsel appearing for respondent No. l has argued that in
effect and practice the Judge-Advocate is the 'court' and the 'court-martial' E
is the jury for all practical purposes so far as the trial of the accused is
concerned. The argument may be exaggerated version of the reality but is not
totally without substance inasmuch as the powers exercised by the Judge-
Advocate indicate that though not forming part of the court-martial, he is an
integral part thereof particularly in court-martials which cannot be conducted F
in his absence. It cannot be denied that the justice dispensation system in the
Army is based upon the system prevalent in the Great Britain. The position
of the Judge-Advocate is by no means less than that of a Judge-Advocate
as~ociated with a-court-martial in that country. The importance of the role of
the Judge-Advocate in U.K. was noticed and considered in R v. Linzee , (1956) G
3 All E.R..

It is true that Judge-Advocate theoritically pe1forms no function as a
judge but it is equally true that he is an effective officer of the court conducting
the case against the accused under the Act. It is his duty to inform the court
of any defect or irregularity in the charge and , in the constitution of the court H
. ·--.._
264 SUPREME COURT REPORTS [2000] 3 S.C.R.
A or in the proceedings. The quality of the advise tendered by the Judge-
Advocate is very crucial in a trial conducted under the Act. With the role
assigned to him a Judge-Advocate is in a position to sway the minds of the
members of the court-martial _as his advise or verdict cannot be taken lightly
by the person composing the court who are admittedly not law knowing
persons. It is to be remembered that the court-martials are not part of the
B
judicial system in the country and are not permanent courts.

The importance of role played by a Judge-Advocate was noticed by this
Court in S.N. Mukherjee v. Union of India, [1990] 4 SCC 594 wherein it was
held:
c "From the provisions referred to above it is evident that thejudge-
advocate plays an important role during the course of trial at a general
court martial and he is enjoined to maintain an impartial position. The
court martial records its findings after the judge-advocate has summed
up the evidence and has given his opinion upon the legal bearing of
D the case. The members of the court have to express their opinion as
to the finding by word of mouth on each charge separately and the
fmding on each charge is to be recorded simply as a fmding of
"guilty" or of "not guilty". It is also required that the sentence should
be announced forthwith in open court. Moreover Rule 66(1) requires
reasons to be recorded for its recommendation in cases where the
E
court makes a recommendation to mercy. There is no such require-
ment in other provisions relating to recording of fmdings and
sentence. Rule 66(1) proceeds on the basis that there is no such
requirement because if such a requirement was. there it would not have
been necessary to make a specific provision for recording of reasons
F for the recommendation to mercy. The said provisions thus negative
a requirement to give reasons for its finding ail.d sentence by the court
martial and reasons are required to be recorded only in cases where
the court martial makes a recommendation to mercy. In our opinion,
therefore, at the stage of recording of findings and sentence the court
G martial is not required to record its reasons and at that stage reasons
are only required for the recommendation to mercy if the court martial
makes such a recommendation.

As regards confirmation of the findings and sentence of the court
martial it may be mentioned that Section 153 of the Act lays down
H that no finding or sentence of a general, district or summary general,
U.0.1. v. C.S. GILL [SETHI, J.] 265
court martial shall be valid except so far as it may be confirmed as A
provided by the Act. Section 158 lays down that the confirming
authority may while confirming the sentence of a court martial
mitigate or remit the punishment thereby awarded, or commute that
punishment to any punishment lower in the scale laid down in Section
71. Section 160 empowers the confirming authority to revise the B
finding or sentence of the court martial and in sub-section (1) of
Section 160 it is provided that on such revision, the court, if so
directed by the confirming authority, may take additional evidence.
The confirmation of the finding and s_entence is not required in respect
of summary court martial and in Section 162 it is provided that the
proceedings of every summary court martial shall without delay be c
forwarded to the officer commanding the division or brigade within
which the trial was held or to the prescribed officer; and such officer
or the Chief of the Army Staff or any officer empowered in this behalf
may, for reasons based on the merits of the case, but not any merely
technical grounds, set aside the proceedings or reduce the sentence D
to any other sentence which the court might have passed~ In Rule 69
it is provided that the proceedings of a general court martial shall be
submitted by the judge-advocate at the trial for review to the deputy
or assistant judge- advocate general of the command who shall then
forward it to the confirming officer and in case of district court martial E
it is provided that the proceedings should be sent by the presiding
officer, who must, in all cases, where the sentence is dismissal or
above, seek advice of the deputy or assistant judge-advocate general
of the command before confinnation. Rule 70 lays down that upon
receiving the proceedings of a general or district court martial, the
confirming authority may confirm or refuse confirmation or reserve
F
confirmation for superior authority, and the confirmation, non-confir-
mation, or reservation shall be entered in and form part of the
proceedings. Rule 71 lays down that the charge, finding and sentence,
and any recommendation to mercy shall, together with the confinna~
tion, non-confirmation of the proceedings, be promulgated in such G
manner as the confirming authority may direct, and if no direction is
given, according to custom of the service and until promulgation has
been effected, confirmation is not complete and the finding and
sentence shall not be held to have been confirmed until they have
been promulgated." H
266 SUPREME COURT REPORTS [2000)3 S.C.R.
A In view of wh"!-t has been noticed hereinabove, it is apparent that if a
'fit person' is not appointed as a judge-advocate, the proceedings of the court
martial cannot be held to be valid and its finding legally arrived at. Such an
invalidity in appointing an 'unfit' person as a judge-advocate is not curable
under Rule 103 of f11e Rules. If a fit person possessing requisite qualifications
and otherwise eligible to form part of the general court martial is appointed
B
as a judge-advocate and ultimately some invalidity is found in his appoint-
ment, the proceedings of the 'court martial cannot be declared invalid. A "fit
person" mentioned in Rule 103 is referable to Rules 39 and 40. ]t is contended
by Shri Rawal, learned ASG that a person fit to be appointed as judge-
advocate is such officer who does not suffer from any ineligibility or
c disqualification in tef.ms of Rule 39 alone. It is further contended that Rule 40
does not refer to disqualifications. We cannot agree with this general propo-
sition made on behalf of the appellant inasmuch as Sub-mle (2) of Rule 40
specifically provides that members of a court-martial for trial of an officer
should be of a rank not lower than that of the officer facing the trial unless
D such officer is not available regarding which specific opinion is required to be
recorded in the convening order. Rule 102 unambiguously provides that "an
officer who is disqualified for sitting on a court martial shall be disqualified
for acting as a judge-advocate in a court martial". A combined reading of
Rules 39, 40 and 102 suggest that an officer who is disqualified to be a part
of court martial is also disqualified from acting and sitting as a judge-advocate
E
at the court martial. It follows, therefore, that if an officer lower in rank than
the officer facing the trial cannot become ~part of the court martial, the officer
of such rank would be disqualified for acting as a judge-advocate at the trial
before a GCM. Accepting a plea to the contrary, would be invalidating the
legal bar imposed upon the composition of the court in sub-rule (2) of Rule
F 40.

Arguments of the learned ASG, if analysed critically, and accepted
would mean that in effect and essence no disqualification or eligibility can be
assigned to any officer in becoming a judge-advocate. Stretching it further it
G can be argued that as Rule 40 does not refer to the ineligibility or disquali-
fication of an officer to be a judge-advocate, even an officer below the rank
of a Captain can become a member of the court martial for the trial of a Field
Officer as bar of sub-mle (3) of Rule 40 is not applicable. Such an interpre-
. tation is uncalled for and apparently contradictory in terms.

H The purpose and object of prescribing the conditions of eligibility and
U.0.1. v. C.S. GILL [SETHI, J.] 267

-
...4 qualification along with desirability of having members of the court martial
of the rank not lower than the officer facing the trial is obvious. The law
makers and the rule framers appear to have in mind the respect and dignity
A

of the officer facing the trial till guilt ,is proved against him by not exposing
him to humiliation of being subjected to trial by officers of lower in rank. The
importance of the judge-advocate as noticed earlier being of a paramount
B
nature requires that he should be such person who inspires confidence and
_.._ does not subject the officer facing the trial to humiliation because the accused
is also entitled to t11e opinion and services of the judge-advocate. Availing of
the services or seeking advise from a person junior in rank may apparently be
not possible ultimately resulting in failure of justice.
'
c
It has been argued t11at as officers of the same rank or higher in rank
than the officers facing the trial in court martials are not available, an
interpretation as rendered by the impugned judgment would render the holding
of court martials impossible. Such an argument is to be noticed for only being
rejected. Sub-rule (2) of Rule 40 itself gives a discretion to the convening
D
officer who is aut11orised to appoint a member of the court-martial or judge-
advocate who is lower in rank than the officers facing the trial, if he is of the
opinion that officer of such rank is not (having due regard to the exigencies
of the public service) available, subject to a further condition that such opinion
is required to be recorded in the convening order. It implied, therefore, that
the provisions of sub-rule (2) of Rule 40 are not mandatory because they give E
a discretion to appoint a member of the court martial or a judge-advocate who
is lower in rank than the officer facing the trial under the circumstances
specified. Rule 39, admittedly, has no exception and is thus mandatory.

Further relying upon Note 2 mentioned at the foot of Rule 102 F
providing, "as to disqualification of a judge-advocate CAR 39(2)", the learned
ASG submitted that the said Note having the force of law has been followed
by the Army authorities from the very beginning and thus disqualifications of
a judge-advocate are referable to only Rule 39(2) of the Rules. It is contended
as the source of the Rules and the Note thereto is the same, the efficacy of
Note 2 cannot be minimised. The Army authorities, according to the learned G
ASG have understood Rules 39, 40 and 102 in this context while making
appointments of the judge- advocate.

In response to our directions an affidavit has been filed on behalf of the
appellants with respect to: H
268 SUPREME COURT REPORTS [2000] 3 S.C.R.
A (a) the authority which had prepared the Notes appearing in Army
Act, 1950 and Army Rules, 1954,

(b) the year in which these Notes were incorporated in the Army Act,
1950 and Anny Rules, 1954,

B (c) the authority which had approved these Notes to be incorporated
in the Army Act and the Rules framed thereunder.

stating therein:

"111at Army Act, 1950 was enacted on the pattern of the Indian Army
c Act, 1911 and Army Rules, 1954 are on the pattern of Indian Army
Act Rules, Almy . Rule 89 of Indian Army Act Rules dealt with
disqualifications of Judge-advocate. It also had note stating that for
disqualification, see the Rule dealing with the Rule pari materia to
Rule 39 of the present Rules that is Army Rules, 1959.

D That the manual of Indian Military Law, 1937, published by Govt. of
India, Ministry of Defence (Corrected upto 1960) Reprint 1967, also
contains Indian Army Act, 1911 with Notes as well as the Indian
Army Act Rules with Notes. Since this was 1967 reprint, in this
manual even Army Act, 1950 and Army Rules, 1954 are also
E contained.

That in the year 1978 th~ JAG's Department compiled the Army Act
and Rules in the new Manual with a view to make it more convenient
for reference. Prior to it, as stated above, the Military Law of the
..
country was outlined in the Manual of Military Law, 1937. The
F Manual contained the Indian Army Act, 1911, the Indian Army Act
and Rules and explanatory notes under various Sections and Rules.
The passage of time necessitated revision of the Manual and incor-
poration of explanatory notes under the relevant sections and clauses
of the Army Act, 1950 and Army Rules, 1954. It also became
necessary to include some other enactments essential to the subject,
G
and to exclude from the Manual the repealed Indian Army Act, 1911
and the superseded Indian Army Act Rules. The Manual of Military
Law containing explanatory Notes under the current and operative
Army Act and Rules were issued in 1983.

That as stated above, the Manual of Military Law issued in 1983 was
c
H
U.O.I. v. C.S. GILL [SETHI, J.] 269

.. -"' compiled by the office of Judge Advocate General and approved by
the Govt. as evident from the preface of the Manual .
A

That the Notes to Almy Act and Almy Rules were appended to Indian
Almy Act, 1911 and the Indian Almy Act Rules and were followed
as explanatory Notes and guidance. These suitably modified and
amended Notes were formally appended to the relevant provisions of B
the Almy Act, 1950 and Almy Rules, 1954 in 1983 after the same
-~ were duly approved by the Govt. That no facts which were not
pleaded before court below have not been pleaded."

However, no material has been placed on record to show that the Notes
appended to the Rules were duly approved by the Government.
c
Per contra the respondent No. I in his affidavit has submitted that the
Notes under Sections and Rules as are found under various provisions of law
compiled by the Almy authorities in the Manual of Military Law do not form
part of the Almy Act, 1950 and Almy Rules, 1954. The Rules of 1954 are D
stated to have been borrowed from the Indian Almy Act, 1911 and the Rules
framed thereunder. It is contended that the Notes are not law passed by
Parliament and have not been vetted even by the Ministry of Law & Justice
or by the Law Commission.
ii._

It is not disputed that Section 191 of the Almy Act empowers the E
Central Government to make rules for the purpose of carrying into effect the
provisions of the Act and Section 192 to make regulations for all or any of
•
the provisions of the Act other than those specified in Section 191. All Rules
and Regulations made under the Act are required to be published in the official
gazette and on such publication shall have the effect as if enacted in the Act. F
i- No power is conferred upon the Central Government of issuing Notes or
issuing orders which could have the effect of the Rules made under the Act.
Rules and Regulations or administrative instructions can neither be supple-

... mented nor substituted under any provision of the Act or the Rules and
Regulations framed thereunder. The administrative instructions issued or the
Notes attached to the Rules which are not referable to any statutory authority
G
)>--
cannot be permitted to bring about a result which may take away the rights
vested in a person governed by the Act. The Government, however, has the
power to fill up the gaps in supplementing the rules by issuing instructions if
the Rules are silent on the subject provided the instructions issued are not
inconsistent with the Rules already framed. Accepting the contention of H
270 SUPREME COURT REPORTS [2000] 3 S.C.R.
A holding Note 2 as supplementing Rules 39 and 40 would amount to amending
and superseding statutory rules by administrative instructions. When Rule 39
~.
....
read with Rule 40 imposes a restriction upon the Government and a right in
favour of the person tried by a court-martial to the effect that a person lower
in rank shall not be a member of the court martial or be a judge-advocate, the
insertion of Note 2 to Rule 102 cannot be held to have the effect of a Rule
B
or Regulation. It appears that the 'notes' have been issued. by the authorities
of the Armed Forces for the guidance of the officers connected with the
implementation of the provisions of the Act and the Rules and not with the
object of supplementing or superseding the statutory Rules by administrative
instructions. After examining various provisions of the Act, the Rules and
c Regulations framed thereunder and perusing the proceedings of the court-
martial conducted against the respondent No.1, we are 6f the opinion that the
judge-advocate though not forming a part of the court, yet being an integral
part of it is required to possess all such qualifications and be free from the
disqualifications which relate to the appointment of an officer to the court-
martial. In other words a judge-advocate appointed with the court-martial
D
should not be an officer of a rank lower than that the officer facing the trial
unless the officer of such rank is not (having due regard to the exigencies of
public service) available and the opinion regarding non-availability·i~ specifi-
cally recorded in the convening order. As in the instant case, judge-advocate
was lower in rank to the accused officer and no satisfaction/opinion in terms
E of sub- rule (2) of Rule 40 was recorded, the Division Bench of the High Court
was justified in passing the impugned judgment, giving the authorities liberty
to initiate fresh court-martial proceedings, if any, if they are so advised in
accordance with law and also in the light of the judgment delivered by the.
High Court.
F
Fears have been expressed that in case the proceedings of the court-
martial are quashed on the ground of the judge-advocate being lower in rank.
than the officer facing trial before the court-marital, many judgments deliv-
ered, orders passed and actions taken by various court-martials till date would
be rendered illegal as according to appellants a number of court-martials have
G already been held and conducted under the assumption of the disqualification
not being referable to Rule 40(2), on the strength of Note 2 attached to Rule
102 of the Rules. In that event, it is apprehended, a flood-gate of new litigation
would.be opened which.ultimately is likely to not only weaken the discipline
in the Armed Forces but also result in great hardship to all those whose rights
have already been determined. Such an apprehension is misplaced in view of
H
U.0.1. v. C.S. GILL [SETfll, J.] 271
"de facto doctrine" born out of necessity as acknowledged and approved by A
various pronouncements of the courts. This Coi.Irt in Gokaraju Rangaraju v.
State of Andhra Pradesh, [1981] 3 SCC 132 applying the de facto doctrine in
a case where the appointment of a judge was found to be invalid, after
reference to various judgments and the observations of the constitutional
experts held:
B
"A judge, de facto, therefore, is one who is not a mere intruder or
usurper but one who holds office, under colour of lawful authority,
though his appointment is defective and may later be found to be
defective. Whatever be the defect of his title to the office, judgme1:1.ts
pronounced by him and acts done by him when he was clothed with C.
the powers and functions of the office, albeit unlawfully, have the
same efficacy as judgments pronounced and acts done by a judge de
jure. Such is the de factor doctrine, bom of necessity and public
policy to prevent needless confusion and endless mischief. There is
yet another rule also based on public policy. The defective appoint- D
ment of a de facto judge may be questioned directly in a proceeding
to which he be a party but it cannot be permitted to be questioned
in a litigation between two private litigants, a litigation which is of
no concern or consequence to the judge except as a judge. Two
litigants litigating their private titles cannot be permitted to bring in
issue and litigate upon the title of a judge to his office. Otherwise so E
soon as a judge pronounces a judgment a litigation may be commended
for a declaration that the judgment is void because the judge is no
judge. A judge's title to his office cannot be brought into jeopardy
in that fashion. Hence the rule against collateral attack on validity of
judicial appointments. To question a judge's appointment in an appeal p
against his judgment is, of course, such a collateral attack.

.. We do not agree with the submission of the learned counsel that the
de facto doctrine is subject to the limitation that the defect in the title
of the judge to the office should not be one traceable to the violation
of a constitutional provision. The contravention of a constitutional G
provision may invalidate an appointment but we are not concerned
with that. We are concerned with the effect of the invalidation upon
the acts done by the judge whose appointment has been invalidated.
The de facto doctrine saves such acts. The defacto doctrine is not a
stranger to the Constitution or to the Parliament and the Legislatures H
272 SUPREME COURT REPORTS [2000] 3 S.C.R.
;l.
A of the States. Article 71(2) of the Constitution provides that acts done .......
by the President or Vice-President of India in the exercise and
performance of the powers and duties of his office shall not be
invalidated by reason of the election of a person as President or Vice-
President being declared void. So also Section 107(2) of the Repre-
sentation of the People Act, 1951 (43 of 1951) provides that acts and
B
proceedings in which a person has participated as a Member of
Parliament or a member of the legislature of a State shall not be ~-
invalidated by reason of the election of such person being declared
to be void. There are innumerable other Parliamentary and State
legislative enactments which are replete with such provisions. The
c twentieth amendment of the Constitution is an instance where the de
facto doctrine was applied by the constituent body to remove any
suspicion or taint of illegality or invalidity that may be argued to have
attached itself to judgments, decrees, sentences or orders passed or
made by certain District Judges appointed before 1966, otherwise
than in accordance with the provisions of Article 233 and Article 235
D
of the Constitution. The twentieth amendment was the consequence
of the decision of the Supreme Court in Chandra Mohan v. State of
U.P., [1967] 1 SCR 77, that appointments of District Judges made
otherwise than in accordance with the provisions of Articles 233 and
235 were invalid. As such appointments had been made in many
E States, in order to pre-empt mushroom litigation springing up all over
the country, it was apparently though desirable that the precise
position should be stated by the constituent body by amending the
...
Constitution. Shri Phadke, learned counsel for the appellants, argued
that the constituent body could not be imputed with the intention of
F making superfluous amendments to the Constitution. Shri Phadke -Ir
invited us to say that it was a necessary inference from the twentieth
amendment of the Constitution that. but for the amendment. the
judgments, decrees, etc., of the District Judges appointed otherwise
than in accordance with the provisions of Article 233 would be void.
We do not think that the inference suggested by Shri Phadke is a
G necessary inference. It is true that as a general rule the Parliament may
-if
be presumed not to make superfluous legislation. The presumption is
not a strong presumption and statutes are full of provisions introduced
.
because abundans cautela non nocet (there is no harm in being
cautious). When judicial pronouncements have already declared the
H law on the subject, the statutory reiteration of t11e law with reference
U.O.I. v. C.S. GILL [SETHI, J.] 273

...... to particular case does not lead to the necessary inference that the law
declar.ed by the judicial pronouncements was not thought to apply to
A

the particular cases but may also lead to the inference that the statute-
making body was mindful of the real state of the law but was acting
under the influence of excessive caution and so to silence the voices
of doubting Thomases by declaring the law declared by judicial
B
pronouncements to be applicable also to the particular cases. In
Chandra Mohan case this Court had held that appointments of District
--..,J·
Judges made otherwise than in accordance with Article 233 of the
Constitution were invalid. Such appointments had beenmade in Uttar
Pradesh and a few other States. Doubts had been cast upon the
validity of the judgments, decrees etc., pronounced by those District c
Judges and large litigation had cropped up. It was to clear those
doubts and not to alter the law that the twentieth amendment of the
Constitution was made. This is clear from the statements of Objects
and Reasons appended to the Bill which was passed as Constitution
(20th Amendment) Act, 1966. The statement said:
D
"Amendments of District Judges in Uttar Pradesh and a few other
States have been rendered invalid and illegal by a recent judg-
ment of the Supreme Court on the ground that such appointments
were not made in accordance with the provisions of Article 233
of the Constitution... As a result of these judgments, a serious E
situation has arisen because doubt has been thrown on the valid-
ity of the judgments, decrees, orders and sentences passed or made
by these District Judges and a number of writ petitions and other
cases have already been filed challenging their validity. The func-
tioning of the District Courts in Uttar Pradesh has practically come
to a standstill. It is, therefore, urgently necessary to validate the
F
judgments, decrees, orders and sentences passed or made hereto-
fore by all such District Judges in those States ....".

This position of law was again reiterated in State of U.P. v. Rafiquddin, (1988)
1 SLR 491= [1987] Supp. SCC 401, wherein it was held:
G
y "We have recorded findings that 21 unplaced candidates of 1970
examination were appointed to the service illegally in breach of the
Rules. We would, however, like to add that even though their
appointment was not in accordance with the law but the judgment and
orders passed by them are not rendered invalid. The unplaced H
274 SUPREME COURT REPORTS [2000] 3 S.C.R.
A candidate are not usurpers of office, they were appointed by the
competent authority to the posts of munsifs with the concurrence of
the High Court, though they had not been found suitable for appoint-
ment according to the norms fixed by the Public Service Commission.
They have been working in the judicial service during all these years
and some of them have been promoted also and they have performed
B
their functions and duties as defacto judicial officers. "A person who
is ineligible to judgeship, but who has nevertheless been duly
appointed and who exercise the powers and duties of the office of a
de facto judge, he acts validly until he is properly removed."
Judgment and orders of a defactor judge cannot be challenged on the
c ground of his ineligibility for appointment."

In view of this position of law the judgments rendered by the court
martial which have attained finality cannot be permitted to be re-opened on
the basis of law laid down in this judgment. The proceedings of any court-
martial, if <1;lready challenged on this ground and are pending adjudication in
D any court in the country would, however, be not governed by the principles
of 'de facto doctrine'. No pending petition shall, however, be permitted to be
amended to incorporate the plea regarding the ineligibility and disqualification
of judge-advocate on the ground of appointment being contrary to the mandate
of Rule 40(2). This would also not debar the Central Government or the
E appropriate authority in passing fresh orders regarding appointment of the fit
persons as judge-advocates in pending cou1t-martials, if so required.

In the light of what has been stated hereinabove, the appeal is dismissed
with the observations and findings noticed in the prec ~.ding paragraph and the
judgment of the Division Bench of the High Court i. upheld. No costs.
F
K.K.T. Appeal dismissed.