- (1.) AN interesting question as regards the jurisdiction of the writ Courts in matters of Court Martial in General, falls for determination in this Writ petition. 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 arbidge 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 views, would be a violent departure to the wishes of the framers of our Constitution. An Army Personnel is as much a 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 force 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 onferred under Part 111 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 R. Viswar and Ors- v. Union of India and Ors. , reported in AIR 1983 SC 658 ).
(2.) THE Supreme Court in the case of Prithi Pal Singh v. The Union of India reported in 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 page 495 : (Air 1978 sc 1675 at page 1727) 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 the liberal sprit of, the Constitution Persons subject to Army Act are citizens of this ancient land having feeling of belonging to the civilized community governed by liberty oriented Constitution. "
(3.) AT this stage it is convenient to deal with the other aspect of the matter as regards the maintainability of the petition under Article 226 of the Constitution as contended by the respondent viz. , that the ban imposed by Article 227 (4) also applies to Article 226.;