UNION OF INDIA Vs. L D BALAM SINGH
SUPREME COURT OF INDIA (FROM: CALCUTTA)
UNION OF INDIA
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(1.)While it is true that army personnel ought to be subjected to strictest form of discipline and Article 33 of the Constitution has conferred powers on to the Parliament to abridge the rights conferred under part III of the Constitution in respect of the members of the armed forces, but does that mean and imply that the army personnel would be denuded of the constitutional privileges as guaranteed under the constitution Can it be said that the army personnel form a class of citizens not entitled to the Constitution's benefits and are outside the purview of the Constitution To answer above in the affirmative would be a violent departure to the basic tenets of the constitution. An army personnel is as much a citizen as any other individual citizen of this country. Incidentally, the provisions as contained in Article 33 does not by itself abrogate any rights and its applicability is dependent on parliamentary legislation. The language used- by the framers is unambiguous and categorical and it is in this perspective Article 33 may be noticed at this juncture. The said Article reads as below :-
"33.Power of Parliament to modify the rights conferred by this part in their application to forces, etc.- Parliament may, by law, determine to what extent any of the rights conferred by this part shall, in their application to, - (a) the members of the armed forces; or (b) the members of the forces charged with the maintenance of public order; or (c) persons employed in any bureau or other organisation established by the state for purposes of intelligence or counter intelligence, or (d) persons employed in, or in connection with, the telecommunication system set up for the purposes of any force, bureau or organisation referred to in clauses (a) to (c) , be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them. "
(2.)A plain reading thus would reveal that the extent of restrictions necessary to be imposed on any of the Fundamental Rights in their application to the armed forces and the forces charged with the maintenance of public order for the purpose of ensuring proper discharge of their duties and maintenance of discipline among them would necessarily depend upon the prevailing situation at a given point of time and it would be inadvisable to encase it in a rigid statutory formula. The Constitution makers were obviously anxious that no more restrictions should be placed than are absolutely necessary for ensuring proper discharge of duties and the maintenance of discipline amongst the armed force personnel and therefore Article 33 empowered the parliament to restrict or abridge within permissible extent, the rights conferred under part III of the Constitution in so far as the armed force personnel are concerned. (In this context reference may be made to the decision of the Supreme Court in the case of B. Viswar and Ors. v. Union of India and ors. , reported in [air 1983 S. C. 658] as also a judgment of the Calcutta High Court in the case of Lt. Col. Amal Sankar bhaduri v. Union of India and Ors. [1987 clt 1] of which one of us (U C Banenee. J) was a party.
(3.)This Court in the case of Prithi Pal Singh v. The Union of India [air 1982 SC 1413] observed
"It is one of the cardinal features of our Constitution that a person by enlisting in or entering 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 392 at p 495 that even prisoners deprived of personal liberty are not wholly denuded of their Fundamental Rights in the larger interest of national security and military discipline, Parliament in its wisdom may restrict or abridge such rights in their application to the armed forces but this process should not be carried so far as to create a class of citizen not entitled to the benefits of liberal spirit of the Constitution Persons subject to Army Act are citizens of this ancient land having a feeling of belongingness to the civilized community governed by the liberty oriented Constitution "
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