Srinagar:The High Court of Jammu & Kashmir and Ladakh has restored the appeal of a former Army personnel from Bandipora Kashmir, convicted by a Summary General Court Martial, while simultaneously upholding the constitutional validity of Rule 147-A of the Army Rules, 1954, which permits denial of court martial proceedings on grounds of national security.
A Division Bench comprising Justices Sanjeev Kumar and Justice Sanjay Parihar passed the judgment in a petition filed by Mushtaq Ahmad Malik of Bandipora, challenging an order of the Armed Forces Tribunal (AFT), Srinagar Bench.
The Tribunal had dismissed Malik’s appeal against his conviction by a Summary General Court Martial on the ground that it was not accompanied by a certified copy of the conviction order.
Malik had contended that the Army authorities themselves had refused to provide the proceedings of the court martial by invoking Rule 147-A, making it impossible for him to annex the certified record before the tribunal.
The petitioner also challenged the constitutional validity of Rule 147-A, arguing that the provision violated Articles 14 and 21 of the Constitution by depriving an accused person of access to trial proceedings.
He further argued that restrictions on fundamental rights under Article 33 could only be imposed through legislation enacted by Parliament and not through subordinate legislation such as rules framed under the Army Act.
Rejecting the challenge, the High Court held that the expression “law” under Article 33 also includes rules framed by the Central government under powers delegated by Parliament through the Army Act, 1950.
The Bench observed that Rule 147-A, therefore, enjoys constitutional protection and cannot be declared ultra vires merely because it restricts access to court martial proceedings in sensitive cases involving national security or friendly relations with foreign states.
The court reiterated that safeguards already exist within the Army Act and Rules to ensure fairness in court martial proceedings.
However, it found fault with the AFT for dismissing Malik’s appeal solely for want of certified copies despite the fact that the petitioner had been lawfully denied those records under Rule 147-A.
“The tribunal ought to have summoned the record of the General Court Martial Proceedings in a sealed cover and examined the appeal of the petitioner on merits,” the court observed.
Setting aside the Tribunal’s order, the High Court restored Malik’s appeal to its original number and directed the Tribunal to hear the matter afresh on merits after summoning the court martial record.
The Bench further directed that the petitioner or his counsel be allowed inspection of the proceedings strictly in accordance with Rule 147-A, and subject to the conditions laid down therein.
The court also asked the tribunal to decide the appeal expeditiously.
