Karnataka High Court
The Union Of India vs Major Vikas Kumar on 21 November, 2012
Author: Vikramajit Sen
Bench: Chief Justice, B.V.Nagarathna
1
IN THE HIGH COURT OF KARNTAKA AT BANGALORE
DATED THIS THE 21st DAY OF NOVEMBER 2012
PRESENT R
THE HON'BLE MR.VIKRAMAJIT SEN, CHIEF JUSTICE
AND
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
WRIT APPEAL NO.6365/2012(S-RES)
&
WRIT APPEAL NO.6571/2012
BETWEEN:
1. The Union of India
Represented by
The Secretary, Ministry of Defence
South Block
New Delhi 110 001.
2. The Chief of the Army Staff
Integrated Headquarters of the Ministry
Of the Ministry of Defence (Army) (IHQ of MOD)
DHQ PO, South Block
New Delhi 110 007.
3. The Vice Chief of the Army Staff
IHQ of MOD (Army)
DHQ PO, New Delhi 110 001.
4. The DG of Military Intelligence (MI-10)
General Staff Branch
IHQ OF MoD(Army)
DHQ PO, New Delhi 110 001.
2
5. Military Secretary Branch (MS PR)
Premature Retirement,
IHQ of MoD (Army)
DHQ PO, New Delhi 110 001
Represented by the Deputy Director. ...Appellants
(By Sri N.Devhadass, Senior Counsel A/w.
Sri Aniyan Joseph, Adv. For appellant.
AND:
1. Major Vikas Kumar
S/o.Surinder Kumar
Aged about 35 years
R/o.No.521/B2, Ghataprabha
National Games Village
Koramangala
Bangalore 47.
2. Ms.Arnila Ranamali Gunaratne
D/o.Saliya Gunarathne
R/o.No.381, 2nd Floor
Aged about 29 years
18th E Main, 6th A Cross, 6th Block
Koramangala
Bangalore 560 095. ....Respondents
(By Sri Aditya Sondhi, Adv. For R1 and 2)
These Writ Appeals are filed under Section-4 of the
Karnataka High Court Act praying to set aside the order passed
in Writ Petition No.9762-63/2012 dated 18/06/2012.
These Writ Appeals having been heard and reserved for
pronouncement of Judgment, this day, the Chief Justice
pronounced the following:
3
JUDGMENT
Vikramajit Sen, C.J.
Petitioner No.1, a serving Major in the Indian Army, states that he had fallen in love with Petitioner No.2 who is a foreign citizen, who has been a bona fide student resident in Bangalore for several years and is presently pursuing her doctoral studies. On realizing their resolve to marry each other, Petitioner No.1 filed an application seeking permission to marry petitioner No.2 or if that was considered to be impermissible, to be released from the Army. This request has been rejected and hence they successfully invoked the extraordinary writ jurisdiction of this High Court.
2. Events and attitudes in most countries indicate that we are indeed disingenuous and insincere whenever we proclaim, platitudinously, that the world has become a "global village"; distrust and discrimination against a foreign citizen remains the order of the day. There are several instances where citizens betray their own countries; there is no empirical data that a 4 foreign spouse will invariably constitute a weak link in matters of national security. Judges are loathe to interfere with the decisions of Authorities unless it is manifest that their perception, ordinance or position is irreconcilable with Human Rights or with our Constitution. We accept that the requirements and necessities of discipline and discretion is in the realm of discretion of the Armed Forces even it may appear to some to be outdated, paranoid or chauvinistic. Therefore, we endeavoured to remain true and steadfast to jural discipline even in arriving at the conclusion which we have reached in this adjudication.
3. This case concerns the correctness of the decision of the Army Authorities, who are the Appellants before us, in rejecting the request of the first writ petitioner for permission to marry the second petitioner, or in the alternative, to accept the resignation of his Commission in the Indian Army. This question has not arisen for the first time and on each occasion when the matter has been taken to the Court, the decision has been unfavourable to the Appellants. The right of conjugal 5 consortium and procreation is the very essence of the being of a human, and partakes the character of a Human Right which transcends all laws and every legislation. Article 21 of the Constitution of India succinctly states that no person shall be deprived of his life or personal liberty except according to procedure established by law. Each and every Fundamental Right guaranteed by our Constitution is to be protected and enforced by the Court. In the case of a confrontation between Human Rights on the one hand and the imperatives of discipline in all its myriad manifestation in the Armed Forces on the other, the former must prevail. It is not our intention to foist our views or prescribe our perceptions on the Armed Forces Authorities but nevertheless we must resolutely interpret the extant Rules in a reasoned and logical manner, so that they conform to and are in consonance with Human Rights.
4. On 28.06.2011 Petitioner No.1 had applied for permission to marry his fiancée, petitioner No.2; Appendix A along with Appendix B had been simultaneously forwarded. As explained in the letter of Petitioner No.1 dated 29.06.2011, 6 Appendix C had not been submitted for the reason that Petitioner No.2 was not willing to renounce her Sri Lankan citizenship. The request of Petitioner No.1 received the recommendation of his Commanding Officer. We will have to assume that at present it is not permissible in the Armed Forces for an Officer to marry a foreign national; certainly the arguments to the contrary have not been expressed in the earlier proceedings or even before us.
5. Permission to marry a foreign national, in contradistinction to grant of premature resignation, are governed by the clauses contained in the "Army Order No. AO 14/2004MI- Marriage with Foreign Nationals," the salient features of which are reproduced below for ease of reference:
"AO 14/2004MI - MARRIAGE WITH FOREIGN NATIONALS:
GENERAL:
1. Army personnel desirous of marrying foreign nationals except the nationals of Bhutan, are required to obtain prior government sanction for such marriages. The provisions of this AO do not apply Gorkhas, whether of Nepalese 7 origin or of Indian domicile, desirous of marrying Nepalese or Indian subject.
xxx
5. Application will be accompanied by the Following documents:-
(a) An application from the service person for release from the army for personal reasons as per Appendix `B' to this order.
(b) A written undertaking from the foreign national to the effect that she/he will renounce her/his original nationality and accept Indian citizenship as soon as The Indian Citizenship Act 1955 permits her/him to do so, as per Appendix `C' to this order. Appendix.C will be countersigned by the judicial magistrate or notary or equivalent of the concerned country.
(c) An undertaking from the service person as per Appendix `D' to this order to the effect that his/her case for release from the service may be processed automatically as per the application for release from service submitted vide para5(a) above, if his/her spouse refused 8 to acquire Indian citizenship or willfully delays acquisition of Indian Citizenship.
x x x
17. In case an Army personnel contracts marriage with foreign national without AG's permission or proposes to resign, in order to be able to marry a foreign national, before completion of the term of his enrolment or before completion of the laid down retirement/tenure of service he or she shall have to refund the entire cost of his/her training.
x x x
19. In the event of failure/refusal by the spouse to change his/her nationality as per para 5(a) above, a case shall be processed with a view to release/retire the individual from service without terminal benefit and obtain refund of entire cost of training.
20. The application for resignation of an officer will be routed to Army HQ, MS Branch through staff channels who in turn will obtain Government sanction in consultation with MI Dte (from security 9 point of view) and MT Dte (for recovery of the cost of training) and process the case as per Govt's sanction."
6. The Petitioners had on an earlier occasion approached this Court by way of Writ Petition No.42998/2011 which came to be decided by our esteemed Brother, B.S. Patil. J in terms of his Orders dated 07.12.2011. Each and every argument raised in the present proceedings, (except for the alleged non-maintainability of the writ petition) had been argued in those previous proceedings, and had been dealt with in detail. In the earlier proceedings the learned Single Judge had directed the Respondents to process the application submitted by the Petitioner for relieving/resigning from service in the Army strictly in accordance with the Army Order. That decision has attained finality, inasmuch as it has not been appealed against by the Respondents. It is abundantly clear that the Appellant/Army Authorities have paid scant respect to a judicial decision which is binding upon them and instead have constrained a citizen of India to needlessly and avoidably enter the portals of the Court once-again. The second salvo, in the nature of Writ Petition 10 Nos.9762-9763/2012, had to be initiated by the Petitioners and once again the issues have been decided in favour of the Petitioners in terms of the impugned Order dated 18.06.2012 passed by our esteemed Brother, H.N.Nagamohan Das J. These writ petitions assailed the decision dated 24.02.2012 of the Military Secretary, Integrated HQ of MoD (Army) MS Br/Premature Retirement, DHQ PO, New Delhi, which rejected Petitioner No 1's application for release from service. The caption, inasmuch as it mentions 'Premature Retirement' discloses that the Respondents had viewed the request incorrectly, right from the inception. It was observed that (a) Petitioner No.1 was yet to complete his mandatory service liability in respect of the Signal Officer Degree Engineering; (b) that there was a deficiency of 32% in Corps of Signals in the relevant ranks of Lieutenant Colonel and below and (c) that the Petitioner's conduct was under investigation "for making unauthorized contact with foreign national and failing to report the same as per the relevant rules". Paragraph 7 of the Instructions of Contact with foreign nationals 1987 prescribes thus -
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"Old Instruction 7:
The guiding principle of contact with Foreign nationals is that 'Army Personnel are forbidden to contact any foreigner while in service, except with official permission'.
Amended Instruction 7:
The guiding principle of contact with foreign nationals is that 'Army personnel while in service should exercise the utmost discretion in their contact with foreign nationals'.
Incidental or encounter meetings with foreigners for which prior permission had not been taken, be reported through staff channel in the form of After Contact Report."
7. So far as AO 14/2004MI is concerned, Rule 5 (a) thereof prescribes the form of an application for release from the Army and when an Appendix 'B' is adverted, it would facially indicate that it is unrelated to the consequences of the marriage of an Officer to a foreign national since it merely mentions "resignation from the service for personal reasons". We shall prefer to supply the necessary intendment by assuming that 'personal reasons' subsume the intention of an Officer to marry a foreign national who is unwilling to renounce her/his nationality. 12 The covenant in Rule/clause 5(b) postulates a written undertaking for renunciation of foreign nationality and acceptance of Indian citizenship by conforming to Appendix C. Rule 5(c) covers those cases where his/her spouse refuses to acquire Indian citizenship or willfully delays acquisition of Indian citizenship, in which case, the Officer would be treated as having resigned from service. In the earlier writ proceedings the Respondents had adopted the specific stand that the Form was incomplete and the learned Single Judge had therefore directed that the application of the Petitioner No.1 be processed on the assumption that because of the unwillingness of his prospective wife to adopt Indian citizenship, his case should be taken as one of resignation or release from services of the Army. Under these circumstances, it is just and necessary for us to immediately distinguish the present case from what we see as a heinous situation where a serving Officer marries a foreign national without seeking the prior permission of the Authorities. It is also necessary to underscore that Petitioner No.1 is desirous of continuing his service in the Indian Army, and only in the event of refusal of permission to marry Petitioner No.2, left with no 13 alternative, he has decided to resign or to be released from the Army.
8. Venturing further it would be apposite to reproduce, for facility of reference, the relevant provisions of International Treaties which India has acceded to.
"UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR),1948 - ARTICLE 16(1):
ARTICLE 16:
1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. they are entitled to equal rights as to marriage, during marriage and at its dissolution.
2. Marriage shall be entered into only with the free and full consent of the intending spouses.
3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the state.14
INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL, CULTURAL RIGHTS 1966 - (ICESCR) - ARTICLE 10:
The State Parties to the present Covenant recognize that:
1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.
2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.
3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination 15 for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation.
Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law.
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, 1976- ARTICLE 23:
1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
2. The right of men and women of marriageable age to marry and to found a family shall be recognized.
3. No marriage shall be entered into without the free and full consent of the intending spouses.16
4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of children.
It is also apposite to quote Article 9 of Convention on the Elimination of All Forms of Discrimination Against Women in 1979:-
"1. States Parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband.
2. States Parties shall grant women equal rights with men with respect to the nationality of their children."17
9. The present case does not present a conundrum as it has already received the judicial scrutiny of a Division Bench of the High Court of Bombay in the case of Major Yogesh Chandra Madhav Sayankar Vs. The Chief of Army Staff Integrated Head Quarters (Army), Ministry of Defence 2011 (3) Mh Lj 620 :
Manu/MH/0393/2011. This decision has been duly taken note of and rightly applied by the learned Single Judge [B.S. Patil. J] in the previous writ proceedings. After discussing the law on the subject in detail, the Division Bench of the Bombay High Court quashed the Order of refusal to grant permission to marry or to release the Officer from the services of the Army and accordingly had directed the Army Authorities, who were also the Appellants in the present case, to consider the application of the Petitioner for permission to marry or for release/resignation as per Rules 17 and 20 of the said Army Order 14/2004MI, subject to recovery of the cost of training. In the case in hand, Petitioner No.1 has agreed to refund the entire costs of his training and also to the forfeiture of his terminal benefits in the event that the appellants are unwilling to grant him permission to marry Petitioner No.2 and in those circumstances to compel and 18 constrain him to resign his Army Commission. In the impugned Order, our learned Brother H.N. Nagmohan Das had duly noted the arguments and the decisions considered in the previous writ petition decided by B.S. Patil. J, and without prejudice to any further investigations in the matter of alleged violation of relevant rules, has not found any sustainable reason or justification for the Respondents to refuse to discharge Petitioner No.1 from service. We find no error whatsoever in the impugned Order.
As we have already noted, it is a Human Right of every human- being, including Army Personnel, to marry a person of his choice albeit after obtaining requisite permission from the Competent Authority of the Indian Army. We can conceive of no reason for the appellants to refuse to accord permission to the petitioner No.1 to do so. It did occur to us that the application of Petitioner No.1 to marry a foreign national may be a ruse or a stratagem to seek an early release from the military but this ground or suspicion has not been articulated by the Respondents. Even before us, Petitioner No.1 resolutely requests that he be accorded permission to marry and continue his Commission in the Army. 19
10. The first decision of the appellant made no reference whatsoever to any shortfall of Officers upto the rank of Lieutenant Colonel, or that if any Officer was permitted to be released it would be detrimental to the establishment of the Indian Army. It seems to us that these considerations would be relevant where a premature resignation is sought for. This ground should have been articulated at the very inception itself, and now it is not forensically fair or permissible for the appellant to adopt this ground for the first time in this second salvo of litigation by way of a side wind. The impugned Order is indubitably a cryptic one and does not contain the reasons on which the decision is predicated. Since reasons are not contained in the impugned Order itself, it must be set aside on the short ground that a party cannot be permitted to travel beyond the stand adopted and expressed by it in its earlier decision. The following observations found in the celebrated decision in Mohinder Singh Gill vs. The Chief Election Commissioner, New Delhi, AIR 1978 Supreme Court 851 are relevant to this question:
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"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (AIR 1952 SC 16) (at p.18):
"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself".
Orders are not like old wine becoming better as they grow older".
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11. Be that as it may, even on merits the three reasons assigned by the Appellants in the impugned decision are bereft of merit inasmuch as the penalty that would visit matrimony with a foreign national are contained in Army Order AO 14/2004MI itself which ordains that the Officer would lose his terminal benefits and in addition thereto he would have to refund or repay all the costs that had been incurred in the course of his training. Petitioner No.1 has already expressed his willingness to suffer both these penalties. Moreover, so far as a shortfall of Officers or Personnel is concerned, that exigency may prevail at the time of processing an application such as the present one, but that would not be legal to out- rightly and permanently reject it. Instead it would be proper to defer the decision, as has been deliberated upon in Rahul Shukla Vs. Union of India Manu/DE/0871/1995 as well as by the Division Bench in Captain (Mrs.) Krishna Vs. Union of India Manu/DE/2936/2010.
12. The only question that remains to be analyzed by us regards the maintainability of the writ petition itself. We have 22 perused the Order dated 07.12.2011 passed by the learned Single Judge [B.S.Patil, J] in the earlier writ petition and find that the aspect of the non-maintainability of the writ petition in view of the availability of remedy under the Armed Forces Tribunal Act 2007, had not been raised therein. It should therefore be treated as being barred by the principles of constructive res judicata so far as the present parties are concerned. A reading of Major Yogesh Chandra also discloses that this objection had not been raised even before the Division Bench of the High Court of Bombay. However, it was raised before the learned Single Judge in the writ proceedings by the learned Additional Solicitor General and with vehemence by learned Senior Counsel before us. As already observed above, the principles of constructive res judicata immediately comes into play. Even ignoring and disregarding this principle, it is trite that there are no statutory constraints on the exercise of the extraordinary powers conferred on the High Court under Articles 226 and 227 of the Constitution of India. Section 14 of the Armed Force Tribunal Act 2007 explicitly bars the jurisdiction of only civil Courts. There is a plethora of 23 precedents on the issue that even where another High Court could more conveniently decide the writ petition, the High Court seized of the writ can investigate and proceed to decide the lis if it favours the opinion that the dictates of justice require it do so. The same enunciation of the law has been recorded even where the availability of an alternate or efficacious remedy is a germane consideration. It is similarly legally well entrenched that a writ can be entertained even though belated or suffering from laches, if the interest of justice calls for interference by the High Court. We therefore are unable to appreciate or accept any manner in which the celebrated decision in Chandra Kumar Vs. Union of India (1997) 3 SCC 261 is of any assistance to the Appellant. Learned Senior Counsel for the appellant has drawn our attention to the following paragraphs thereof which, to our mind, militate against this very technical objection inasmuch as the seven Judges Bench has categorically noted that writ jurisdiction cannot be ousted.
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"99.In view of the reasoning adopted by us, we hold that clause 2(d) of Article 323-A and clause 3(d) of Article 323-B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction"
clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323-A and Article 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the 25 areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated." (Underlining supplied)
13. The appeal is accompanied by an application [IA. 1/2012] seeking condonation of delay of 57 days in its preferment. We are not convinced with the reasons given in the application since it is apparent that the Appeal has been filed only after initiation of contempt proceedings by the writ petitioners. This is the second round of litigation necessitated because of what we see as obduracy on the part of the Appellants. We say this because of the decision in Rahul Sukla which was challenged unsuccessfully up to the Hon'ble Supreme Court. We are also of the view that the decision of the Division Bench of the Bombay High Court in Major Yogesh Chandra is applicable on all fours to the facts of the present case and which 26 has attained finality. Furthermore, no cogent grounds have been raised in the second set of writ petitions. In the earlier proceedings the appellant had not deferred the request of petitioner No.1 because of the alleged shortfall of Officer upto the rank of Lieutenant Colonel. What is also disturbing is that the Appellants have now undertaken an investigation into the service of Petitioner No.1 which palpably in the nature of fishing enquiry and afterthoughts, urged only in the second round of litigation. If really there were any allegation against Petitioner No.1, they should have been immediately mentioned in the rejection of his request for permission to marry Petitioner No.2 or in the alternative for releasing him from the Army. This conduct and inconsistent pleadings of the appellants call for imposition of exemplary costs, since the petitioners have been vexed with multiplicity of proceedings. We do not propose to make any further observations on the conduct of the Military Secretary (PR) Integrated HQ of Ministry of Defence and/or other Officers, as they stand arrayed and summoned in the pending Contempt proceedings.
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14. For these manifold reasons, we are of the view that the Writ Appeals are completely devoid of merit. They are dismissed. In the facts and circumstances, the Appellants are directed to pay costs of Rs.75,000/- (Rupees seventy five thousand only) within thirty days from today, payable jointly to the Respondents 1 and 2.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE VR