Court-martial Proceedings and Article 33 of the Constitution

With reports that Lt.-Gen. Avadesh Prakash will be court-martialled; it might be an appropriate time to visit some of the legal provisions in this connection. The allegations against the officer are (going by a recent NDTV report) that “Lieutenant General Avadesh Prakash was indicted by an army inquiry of using his position to help a businessman in Siliguri in West Bengal. The internal investigation found that Prakash influenced officers to permit a real estate developer to acquire 71 acres next to the Army's 33 Corps Headquarters in Siliguri in West Bengal. The Army, which had earlier told the government that this land could not be sold to any commercial developer for security reasons, okayed the transfer of the land to Agarwal.”The law in this regard is to be found in the Army Act, 1950. Possibly, a case could be made out under Section 45 of the Act.

”45. Unbecoming conduct. Any officer, junior commissioned officer or warrant officer who behaves in a manner unbecoming his position and the character expected of him shall, on conviction by court-martial, if he is an officer, be liable to be cashiered or to suffer such less punishment as is in this Act mentioned; and, if he is a junior commissioned officer or a warrant officer, be liable to be dismissed or to suffer such less punishment as is in this Act mentioned.”

This Section was recently considered by the Supreme Court in M.M. Malhotra v. Union of India, AIR 2006 SC 80; and the words “manner unbecoming his position and the character expected of him” appear to be of very wide import. The scheme of the Act and the procedure to be followed in a court-martial has been explained in Lt.-Col. P.P.S. Bedi v. Union of India,AIR 1982 SC 1413. Other Sections which might have a possible application include Sections 52, 53 etc. The procedure in relation to a court-martial is found in Chapter X of the Army Act. The power to convene a general court-martial may be exercised by the chief of army staff under Section 109. The question of to what extent these (and other) provisions of the Act are consistent with Part III of the Constitution of India, 1950 has also been considered by the Courts. A challenge to provisions of the Act will be extremely difficult, if not impossible, due to Article 33 of the Constitution. The Supreme Court explained the position thus in Lt.-Col. P.P.S. Bedi v. Union of India, AIR 1982 SC 1413:

“… Article 33 confers power on the Parliament to determine to what extent any of the rights conferred by Part III shall, in their application to the members of the Armed Forces, be restricted or abrogated so as to ensure the proper discharge of duties and maintenance of discipline amongst them. Article 33 does not obligate that Parliament must specifically adumbrate each fundamental right enshrined in Part III and to specify in the law enacted in exercise of the power conferred by Article 33 the degree of restriction or total abrogation of each right. That would be reading into Article 33 a requirement which it does not enjoin. In fact, after the Constitution came into force, the power to legislate in respect of any item must be referrable to an entry in the relevant list. Entry 2 in list I: Naval, Military and Air Force and any other Armed Forces of the Union, would enable Parliament to enact the Army Act and armed with this power the Act was enacted in July, 1950. It has to be enacted by the Parliament subject to the requirements of Part III of the Constitution read with Article 33 which itself forms part of Part III. Therefore, every provision of the Army Act enacted by the Parliament, if in conflict with the fundamental rights conferred by Part III, shall have to be read subject to Article 33 as being enacted with a view to either restricting or abrogating other fundamental rights to the extent of inconsistency or repugnancy between Part III of the Constitution and the Army Act…”