Kashmir Impulse Desk

Srinagar, May 15

The High Court of Jammu and Kashmir and Ladakh on Thursday upheld the constitutional validity of Rule 147-A of the Army Rules, 1954, which allows authorities to withhold certified copies of court martial proceedings on grounds of national security or friendly relations with foreign states.

A division bench comprising Justice Sanjeev Kumar and Justice Sanjay Parihar delivered the ruling while hearing petitions challenging an April 2024 order of the Armed Forces Tribunal (AFT) Srinagar bench.

The petitioners had challenged the AFT’s decision dismissing their appeal against convictions handed down by a Summary General Court Martial on the grounds that the appeal was not accompanied by certified copies of the court martial proceedings.

The petitioners argued that the Army authorities had refused to provide copies of the proceedings by invoking Rule 147-A and contended that the provision violated Articles 14 and 21 of the Constitution, which guarantee equality before law and protection of life and personal liberty.

They also argued that Article 33 of the Constitution, which permits modification of fundamental rights for armed forces personnel, applied only to laws enacted by Parliament and not to subordinate legislation such as rules framed under an Act.

The court observed that the key issue before it was whether Rule 147-A, which potentially restricted a person’s right to a fair trial and access to legal remedies, could nonetheless be protected under Article 33.

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

The union government defended the provision, arguing that the Centre had certified that disclosure of the proceedings would be against national security interests and that withholding the documents was therefore lawful.

After examining the matter, the court held that the Army Rules framed under Section 191 of the Army Act carried the force of law and were protected under Article 33 of the constitution.

The bench further held that the term “law” under Article 33 included rules framed by the government under powers delegated through parliamentary legislation.

However, the court found fault with the Armed Forces Tribunal for dismissing the petitioners’ appeal solely because certified copies were unavailable, despite those copies having been withheld under Rule 147-A itself.

The High Court said the tribunal should have summoned the court martial records in a sealed cover and examined the appeal on merits rather than rejecting it on technical grounds.

The bench subsequently set aside the tribunal’s earlier order, restored the appeal and directed the AFT to hear the matter afresh after summoning the Summary General Court Martial records.

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