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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 adumberate each fundamental right enshrined in part III and to specify in the law enacted in exercise of the power conferred by Art. 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. [t 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 Art. 33 as being enacted with a view to either restricting or abrogating other fundamental rights to the extent of inconsistency or repugnancy between Part Ill of the constitution and the Army Act. This is no more res integra in view of the decision of the Constitution Bench of this Court in Ram Sarup v. Union of India & Another(l) in which repelling the contention that the restriction or abrogation of the fundamental rights in exercise of the power conferred by Art. 33 is limited to one set out in sec. 21 of the Act, this Court observed as under:

It would be advantageous at this stage to call attention to the provision contained in section 130 of the Act and rules 41 to 44 of the Rules. When either a general, district or summary court martial is assembled and the offender who is to be tried is brought before it, it is obligatory to read out the names of the presiding officer and the members composing the court martial to the accused and he is asked whether he objects to his being tried by any of the officers sitting on the court. Sub-section (2) of section 130 requires that if the accused objects to any such officer, his objection and the reply there to of the officer objected to shall be heard recorded and the remaining officers of the court shall in the absence of the challenged officer decide the objection. The provision contained in section 130 is elaborated in rules 41 to 44. Rule 41 requires that as soon as the court assembles the order convening the court shall be laid before it together with a charge sheet and summary of evidence as also the ranks, names and corps of the officers appointed to serve on the court. A duty is cast on the court to first ascertain whether it has been convened according to the provisions of the Act and the rules. In order to find out whether rule 40 has been complied with or not, the corps to which each officer composing the court martial is attached is to be set out and which will reveal at a glance whether he is qualified to sit on the court. At this stage the accused does not enter into the picture. The duty is cast on the court itself to ascertain whether its constitution is in accordance with the Act and the rules. Rule 42 cast a duty on the court to satisfy itself that the person who is to be tried is amenable to the provisions of the Army Act and that each charge framed against him discloses an offence under the Act and is framed is accordance with the rules. Then A comes rule 43. After the court has satisfied itself that rules 41 and 42 have been complied with the accused is to be brought before the Court. Rule 44 provides that on the accused being brought before the court, the order convening the court and the names of the presiding officer and the members of the court shall then be read over to the accused and he shall be asked as required by section 1 30 whether he has any objection to being tried by any officer serving in the Court. Whenever an objection is taken it has to be recorded, In order to ensure that any one objected to does not participate in disposing of the objection, clause (a) of the proviso to rule 44 directs that the accused shall state the names of all officers constituting the court in respect of whom he has any objection before any objection is disposed of. This is a mandatory requirement because the officer objected to cannot participate in the decision disposing of the objection. It is true that if the court is not constituted in accordance with the Act and the Rules, rule 44 would hardly assist because as in this case if the contention is that rule 40 was . violated in constituting the court-martial and that each officer was disqualified from being a member of the court-martial, there is none left to dispose of the contention. In such a situation, rule 44 may not be helpful because once such an objection is taken no one shall be competent to decide the objection. The provision conferring a right on the accused to object to a member of the court-martial sitting as a member and participating in the trial ensures that a charge of bias can be made and investigated against individual members composing the court-martial. This is preeminently a rational provision which goes a long way to ensure a fair trial. That stage is still to come and therefore we refrain from pronouncing on any allegation of bias against individual member of the court martial.

The submission is that before a general court martial is convened as provided in rule 37 it is obligatory for the commanding officer to hear the charge made against the accused in his presence giving an opportunity to the accused to cross-examine any witness against him and to call any witness and make any statement in his defence and that if the commanding officer is so satisfied he can '.. dismiss the charge as provided in sub-rule (2) of rule 22. If at the conclusion of the hearing under rule 22 the commanding officer is of the opinion that the charge ought to be proceeded with, he has four options open to.him, one suchbeing toadjourn the caseforthe - . purpose of having the evidence reduced to writing, called summary of evidence. Rule 23 prescribes the procedure for taking down the summary of evidence which, inter alia, provides recording of the evidence of each witness, opportunity to the accused to cross-examine each such witness, etc. Rule 24 provides that the summary of evidence so recorded shall be considered by the commanding officer who at that stage has again three courses open to him, to wit, (a) remand the accused for trial by a court-martial, (b) refer the - case to the proper superior military authority; and (c) if he thinks it desirable, re-hear the case and either dismiss the charge or dispose - it of summarily. It was urged that in case of the petitioner Lt. Col.Bedi, the commanding officer did not hear the charge in his presence that no direction to prepare a summary of evidence in which he could participate was given and that without complying with the mandatory requirements of rules 22 and 23 a direction has been given to convene the court-martial to try the petitioner. Rules 22 to 24 are mandatory in respect . Of every person subject to the Act other than an officer. Therefore, the requirements of rules 22 to 24 are not mandatory in case of an officer and this becomes manifestly clear from sub-rule (I) of rule 25 which provides that where an officer is charged with an offence under the Act, the investigation shall, if he reguires it, be held, and the evidence, if he so requires, be taken in his presence in writing in the same manner as nearly as circumstances admit, as is required by rule 22 and rule 23 in the case of other persons subject to the Act. The opening words of rule 22 clearly derr.onstrate the mandatory applicability of the provisions in rule 22 and 23 rule in case of persons subject to the Act other than officers. Any lurking doubt in that behalf is removed by the language of rule 25 which provides that if an officer is charged with an offence under the Act, the investigation, if he required, shall be held and the evidence, if he requires shall be held aDd the evidence, if requires it, shall be taken in his presence. The petitioner is an officer.Therefore, the procedure prescribed in rules 22 and 23 will not apply porprio vigor to him. If he wants rules 22 and 23 rule to be complied with, it is for him to make a request in that behalf. He has to make a two-fold request: (I) that the investigation shall be done in his presence; and (2) the summary of evidence shall also be drawn in his presence. Petiti-oner in this case has averred in his petition that the commanding officer did not hear the charge as required by rule 22 and, therefore, he could not participate in the hearing of the charge nor could be cross- examine the witnesses and make his submissions. He further stated that no charge-sheet was given to him. He has averred that the order dated November IO, 1980, for taking down summary of evidence is void and illegal as it is violative of Rule 23 cf the Rules. Mr. Sanghi contended that failure to comp1y with rules 22, 23 and 24 has denied to the petitioner an opportunity first to convince the commanding officer to dismiss the charge under sub-rule (2) of rule 22 and even if he could not have persuaded the commanding officer to dismiss the charge after the summary of evidence was recor(led, he could have persuaded the commanding officer under rule 24 either to refer the case to superior military authority or re-hear it and dismiss the charge and this dential of opportunity vitiates the subsequent trial by general court martial. Nowhere in the petition the petitioner has specifically stated that he did make a request that the investigation shall be done in his presence and that the summary of evidence should be recorded in his presence. There is utter sphinx like silence on this point. In para 39 of the counter-affidavit on behalf of the respondents it is specifically stated that rule 25 requires that if an officer wants rules 22 and 23 to be complied with, he has to make a request in that behalf and tbat the petitioner never made such a request at the appropriate time and, therefore, cannot now make a grievance that rules 22 and 23 have not been complied with. There is no rejoinder to the affidavit. Therefore, it is crystal clear that in the absence of a request from the petitioner as-required by rule 2S, failure to comply with rules 22, 23 and 24 would not vitiate the trial by the general court-ma.tial. Rex v. Thomson,(l) was relied upon to buttress the submission that there has to be hearing of the charge by the officer Commanding in the presence of the offender and the offentler should be afforded full opportunity to be heard before a court martial is convened and this is a mandatory requirement and the courts must draw a distinction between what is merely irregular and what is of such a character as to be of substance. It was urged that compliance with this procedure which affords full opportunity of participation cannot be treated as merely directory but must be held to be mandatory to ensure a just and fair trial and its violation must be held to vitiate the order convening the courtmartial and the order would be without jurisdiction. It may be pointed out that the offender in the case before the court in that case was a non-commissioned officer governed by the Army Act, 1881.He was thus a person other than an officer subject to the Army Act aDd the mandate of rules 22 and 23 in his case would have applied in all its rigour but as has been pointed out tbe petitiooer in the present case is an officer and unless he requires it, rules 22 and 23 are not required to be complied with and, therefore, the decision does not advance his any further. Therefore, there is no merit in this CODtention.

Writ Petitions 1513 of 1979 and 5930 or 1980:

Save and except the contention as to the validity of the com-position of the court martial no other specific contention was raised in these two petitions.

Reluctance of the apex court more concerned with civil law to interfere with the internal affairs of the Army is likely to create a distorted picture in the minds of the military personnel that persons subject to Army Act are not citizens of India. 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 & ors. (1) that even prisoners deprived of personal liberty are not wholly denuded of their fundamental rights. In the larger interest of national security and military discipline Parliament in its widsom may restrict or abrogate such rights in their application to the Armed Forces but this process should not be carried so far as to create a class of citizens not entitled to the benefits of the liberal spirit of the Constitution. Persons subject to Army Act are grity and wholly unbiased. A marked difference in the procedure A for trial of an offence by the criminal court and the court martial is apt to generate dissatisfaction arising out of this differential treatment. Even though it is pointed out that the procedure of trial by court martial is almost analoguous to the procedure of trial in the ordinary criminal courts, we must recall what Justice William O'Douglas observed 'that civil trial is held in an atmosphere conducive to the protection of individual rights while a military trial is marked by the age-old manifest destiny of retributive justice. Very expression 'court martial' generally strikes terror in the heart of the person to be tried by it. And somehow or the other the trial is looked upon with disfavour.'(1) In Reid v. Covart.(2) Justice Black observed at p. 1174 as under;