SRINAGAR: The Jammu Kashmir and Ladakh High Court has upheld the constitutional validity of Rule 129 of the Border Security Force (BSF) Rules, 1969, which entitles a person tried by a Security Force Court to obtain copies of the proceedings after confirmation of the finding and sentence, ruling that the non-supply of certified copies before confirmation does not, by itself, violate the fundamental right to a fair trial under Article 21 of the Constitution.
A Division Bench comprising Chief Justice Dr Pushpendra Singh Bhati and Justice M A Chowdhary allowed an appeal filed by the Union of India and other BSF authorities and set aside the judgment passed by a Single Judge on April 28, 2022, which had declared Rule 129 unconstitutional and directed that the trial proceedings against a BSF constable be resumed from the stage of conclusion of the prosecution evidence.
In its judgment pronounced on October 22 and uploaded on October 23, the Bench held that the right to inspect trial proceedings under Rule 120 of the BSF Rules, read with the other safeguards provided under the BSF Act, 1968, and the Rules framed under it, constitutes a legally sufficient procedural safeguard.
The Court clarified that its decision on the constitutional validity of the rule would have no bearing on the final adjudication of the respondent’s guilt or punishment.
The case concerns Rovinder Singh, a BSF constable who was tried by a General Security Force Court (GSFC) in connection with the fatal shooting of Head Constable Chander Bhan inside the BSF campus at Bandipora on November 27, 2017.
An FIR was registered in the matter under Section 302 of the Ranbir Penal Code (RPC). The police investigated the case and presented a charge sheet before the Chief Judicial Magistrate, Bandipora, which committed the matter to the Court of Sessions. Subsequently, as Singh was a member of the BSF, the competent authority exercised the statutory option to have him tried by a General Security Force Court under the BSF Act.
Singh faced trial for offences punishable under Section 302 RPC read with Section 46 of the BSF Act, besides a charge arising from allegedly leaving his picket without orders from his superior officers.
The trial commenced on November 13, 2019, and concluded on March 7, 2020. The GSFC found Singh guilty and sentenced him to life imprisonment and dismissal from service. However, the finding and sentence were subject to confirmation under Section 107 of the BSF Act, which provides that a finding or sentence of a General Security Force Court shall not be valid except to the extent that it is confirmed in accordance with the Act.
During the trial, Singh sought certified copies of the charge sheet and related documents, along with copies of statements made by prosecution witnesses. His request was opposed on the basis of Rule 129, and the copies were not provided. The judgment records that he was not excluded from the proceedings or denied the opportunity to inspect the record under Rule 120.
Aggrieved by the refusal, Singh approached the High Court, challenging the constitutional validity of Rule 129. He argued that denying him copies of prosecution evidence before confirmation of the finding and sentence deprived him of an effective opportunity to prepare his defence and infringed his right to a fair trial under Article 21.
The Single Judge accepted his plea, holding that the right to inspect proceedings could not be equated with the right to obtain certified copies. The court also held that postponing the supply of copies until confirmation prejudiced the accused in preparing his defence and that Article 33 of the Constitution could not justify the restriction in the absence of a demonstrated connection with the maintenance of discipline or the proper discharge of duties by the BSF.
The Union of India and the other appellants challenged that judgment before the Division Bench.
Special statutory procedure under BSF Act
The appellants argued that the Single Judge had erred in treating the supply of copies during trial as an absolute requirement of the constitutional guarantee of a fair trial.
They submitted that the BSF Act establishes a special statutory framework governing the constitution, jurisdiction, procedure and functioning of Security Force Courts, including the recording of evidence, review of proceedings and confirmation of findings and sentences.
Referring to Section 87 of the BSF Act, which makes the Indian Evidence Act applicable to proceedings before a Security Force Court subject to the provisions of the BSF Act, the appellants argued that the special procedure prescribed under the Act and its Rules must prevail over general provisions where the two operate differently.
They maintained that Rule 129 does not deny an accused access to the proceedings but regulates the stage at which copies may be obtained. Rule 120, they submitted, permits inspection of the proceedings at all reasonable times before the court closes to consider its finding.
The appellants also relied on the Supreme Court judgment in Union of India v. Ex. Flt. Lt. G.S. Bajwa, (2003) 9 SCC 630, which dealt with a similar provision under the Air Force Rules, 1969. In that case, the Supreme Court held that the right to inspect proceedings at reasonable times could satisfy the requirements of natural justice and that the accused could not insist on receiving copies of the proceedings on a day-to-day basis.
The respondent, however, argued that copies of prosecution witnesses’ statements were essential for identifying contradictions, comparing testimony and preparing an effective defence. He relied on Supreme Court judgments, including Nahar Singh Yadav v. Union of India and Mohd. Hussain v. State (Government of NCT of Delhi), to emphasise the constitutional requirement of a fair trial.
He further contended that Article 33 did not confer unrestricted power to curtail fundamental rights and that the restriction imposed by Rule 129 had not been shown to bear a sufficient connection with discipline or operational requirements. He sought a fresh trial from the stage of framing of charges.
Supreme Court precedent relied upon
Examining the first issue, the Division Bench held that Section 87 of the BSF Act must be read in its entirety, particularly the words “subject to the provisions of this Act”.
The Court observed that the BSF Act is a special parliamentary enactment governing offences, trials, evidence, confirmation and execution of sentences involving members of the Force. It held that Rule 129 does not extinguish the evidentiary value of the proceedings or deny an accused the right to know or inspect the evidence against him. Instead, it regulates when the person tried becomes entitled to obtain copies.
The Bench noted that Rule 120 provides for inspection during trial, Rule 121 deals with review of proceedings, Rule 128 concerns their preservation, Rule 129 governs the supply of copies and Rule 130 provides for additional safeguards in cases involving State security or friendly relations with foreign States.
Relying on G.S. Bajwa, the Court held that the Constitution does not impose an absolute requirement that physical or certified copies of proceedings must be supplied at every stage of a trial conducted under a special statutory jurisdiction, provided the prescribed procedure affords a meaningful opportunity to inspect the record and prepare a defence.
The Bench accordingly held that Section 87, read with the statutory scheme of the BSF Act and the Rules, sustained the operation of Rule 129.
Article 33 and the right to a fair trial
On the question of constitutional validity, the Court acknowledged that Article 21 applies to members of the BSF and that membership of an armed force does not deprive a person of constitutional protection.
However, it noted that Article 33 empowers Parliament to determine the extent to which fundamental rights may be restricted or abrogated in their application to members of the Armed Forces and forces charged with maintaining public order, to ensure the proper discharge of their duties and the maintenance of discipline.
The Bench referred to Maneka Gandhi v. Union of India, AIR 1978 SC 597, on the requirement that a procedure affecting life and personal liberty must be fair, reasonable and non-arbitrary. It also considered the Supreme Court’s observations in Union of India v. G.S. Bajwa concerning Parliament’s power under Article 33.
The Court further examined Section 117 of the BSF Act, which provides for petitions against orders passed by Security Force Courts. Under Section 117(1), a person aggrieved by an order may petition the authority empowered to confirm the finding or sentence, which may examine its correctness, legality, propriety and the regularity of the proceedings.
Section 117(2) provides a further remedy after confirmation, allowing a petition to the Central Government, the Director-General or a prescribed officer superior in command to the authority that confirmed the finding or sentence.
The Bench also referred to Section 118, which empowers the relevant authorities to annul proceedings of a Security Force Court on grounds of illegality or injustice.
It held that these remedies, together with the inspection and review provisions, form part of a statutory framework intended to provide safeguards against procedural irregularities and unlawful findings or sentences.
The Court also considered the respondent’s reliance on Secretary, Ministry of Defence v. Babita Puniya, (2020) 7 SCC 469, observing that restrictions under Article 33 must be connected with the proper discharge of duties and the maintenance of discipline. It concluded that Rule 129 could not be examined in isolation from the broader statutory framework governing Security Force Courts.
According to the Bench, the rule does not prohibit inspection, prevent participation in the trial, bar cross-examination or permanently deny access to the proceedings. It postpones the entitlement to obtain copies until confirmation of the finding and sentence.
The Court held that the distinction between proceedings awaiting confirmation and those that have been confirmed has a rational basis in the statutory scheme, as Section 107 makes confirmation a condition for the validity of the finding and sentence.
It therefore rejected the contention that Rule 129 was manifestly arbitrary or discriminatory merely because the procedure differed from that followed by ordinary criminal courts.
Inspection held sufficient in the circumstances
Addressing whether the non-supply of certified copies during trial violated Article 21, the Bench held that the right to a fair trial guarantees an effective opportunity to defend oneself but does not invariably require that this opportunity take the form of possession of certified copies of every proceeding.
The Court distinguished between access to proceedings and possession of copies, holding that the former is integral to procedural fairness while the latter may be regulated by law.
It observed that the respondent had not brought material to its notice demonstrating that he had actually been prevented from inspecting the proceedings, cross-examining a material witness, putting a material contradiction to a witness or raising a specific defence because inspection had been denied.
The Bench said that the possibility that copies might assist the defence was not, by itself, sufficient to invalidate a rule forming part of a special statutory procedure.
It also considered Nahar Singh Yadav v. Union of India, (2011) 1 SCC 307, and held that while the judgment emphasises a fair trial and sufficient time and facilities to prepare a defence, it does not establish an inflexible constitutional rule requiring physical copies of every proceeding to be supplied during every stage of a trial under a specialised statutory jurisdiction.
The Court noted that the Single Judge had emphasised the practical usefulness of copies for defence counsel in remembering prosecution testimony and preparing the defence. However, the Division Bench held that the usefulness of copies did not establish their constitutional indispensability where the governing law provided for inspection.
The Bench concluded that Rule 129, read harmoniously with Sections 87, 107 and 108 of the BSF Act and Rules 120, 121, 128 and 130 of the BSF Rules, was constitutionally valid.
Allowing the appeal, the Court set aside the Single Judge’s judgment dated April 28, 2022, in WP(C) No. 255/2020 and held that the non-supply of certified copies before confirmation of the finding and sentence did not, by itself, violate the right to a fair trial under Article 21.
The competent authorities were directed to proceed in the matter in accordance with the BSF Act, 1968, and the BSF Rules, 1969. The Bench made it clear that its judgment would not be construed as expressing any opinion on the merits of the case and would have no bearing on the final adjudication of the respondent’s guilt or punishment.
The judgment was delivered by Chief Justice Dr Pushpendra Singh Bhati, with Justice M A Chowdhary concurring.
