Umesh Chandra Banerjee, J. - (1.) An interesting question as regards the jurisdiction of the writ Court in matters of Court Martial in General, falls for determination in this writ petition.
(2.) 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 in my view, would be a violent departure to the wishes of the framers of our Constitution. An Army Personnel is as much citizen as any other individual citizen of this country. At this juncture it would be worthwhile to refer to Article 33 of the Constitution. Article 33 has been engrafted in the Constitution to enable the Parliament by law to restrict the rights as contained in Part III of the Constitution. 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.).
(3.) The Supreme Court in the case of Prithi Pal Singh v. The Union of India 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 Patra v. Delhi Administration that even prisoners deprived of personnel 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 havings feeling of belonging to the civilized community governed by the liberty oriented -- Constitution.";