Srinagar, Oct 23, KDC: Observing that the fundamental right to life and personal liberty does not prohibit reasonable procedural regulation, the High Court of Jammu & Kashmir and Ladakh has upheld the constitutional validity of a Border Security Force rule that postpones the supply of trial records to an accused until the sentence is officially confirmed.
A Division Bench comprising Chief Justice Dr. Pushpendra Singh Bhati and Justice M. A. Chowdhary delivered the judgment, overturning a previous Single Judge order that had struck down Rule 129 of the BSF Rules, 1969, as ultra vires of Article 21 of the Constitution. The appellate court ruled that providing an accused the statutory right to inspect military court proceedings constitutes a legally sufficient procedural safeguard.
The legal dispute emerged from the trial of BSF Constable Rovinder Singh, who faced prosecution before a General Security Force Court for allegedly shooting dead his colleague, Head Constable Chander Bhan, inside the BSF campus at Bandipora on November 27, 2017. The military court found Singh guilty and awarded him life imprisonment, a sentence subject to mandatory statutory confirmation by higher authorities.
During the trial, the accused had sought certified copies of the prosecution statements to prepare his defense. The military court declined the request citing Rule 129, which entitles an accused to obtain a copy of the proceedings only after the finding and sentence are confirmed.
While a Single Judge subsequently quashed the military court proceedings by declaring this denial an infringement of the guarantee of a fair trial, the Division Bench set aside that verdict.
In its detailed judgment, the Division Bench clarified the scope of constitutional protections within military justice. The court observed that Article 21 does not prohibit reasonable procedural regulation, noting that the respondent’s right under the Constitution is the right to a fair procedure, not an absolute entitlement to physical documents at every stage.
The bench emphasized the legal distinction between having access to proceedings and possessing physical copies. The court noted that Rule 120 of the BSF Act explicitly permits an accused to inspect the proceedings at all reasonable times before the court is closed to consider the finding, ensuring meaningful access to the material required to mount a defense.
“Inspection is not a denial of access. The statutory right of inspection is substantive,” the Division Bench observed. “The Constitution guarantees a fair opportunity to defend; it does not prescribe that such opportunity must invariably take the form of possession of certified copies.”
Addressing the broader context of military law, the High Court relied upon Article 33 of the Constitution, which empowers Parliament to restrict the fundamental rights of armed forces personnel to ensure the proper discharge of duties and the maintenance of discipline. The court ruled that the classification between the stage before confirmation and the stage after confirmation has a rational basis in the statutory structure of the BSF.
Highlighting the necessity of institutional order, the Chief Justice noted that a member entrusted with arms assumes a solemn responsibility towards both the institution and his colleagues. The bench said that the use of those arms to perpetrate a lethal assault upon a colleague would constitute a profound betrayal of that responsibility and a serious threat to unit cohesion.
Before parting with the case, the Division Bench clarified that its ruling was confined to the constitutional validity of the procedural rule and should not be construed as an expression of opinion on the merits of the murder accusation or the final adjudication of the constable’s guilt. (KDC)
