Sunday, May 8, 2022

The High Court of Jammu & Kashmir and Ladakh strikes down Rule 129 of the Border Security Force Rules

The High Court of Jammu & Kashmir and Ladakh has held Rule 129 of the Border Security Force Rules, 1969 as unconstitutional. The Border Security Force (BSF) is a border guarding force in India which is maintained on military lines but falls under the jurisdiction of the Ministry of Home Affairs rather than the Ministry of Defence. It is categorized as a Central Armed Police Force (CAPF) and many of the provisions governing the said Force are analogous to those governing the defence services.

The Rule runs (or used to run, prior to the ruling) as under:

“129. Right of person tried to copies of proceedings— Every person tried by a Security Force Court shall be entitled to obtain on demand, at any time after the confirmation of the finding and sentence, when such confirmation is required and before the proceedings are destroyed, from the Chief Law Officer a copy thereof, including the proceedings upon revision, if any.”

The challenge was limited to the aspect that the operation of the Rule denies (denied) a copy of the proceedings to the accused, including statements of witnesses recorded at the trial before a Security Force Court (Court Martial) till the culmination of the trial and sentencing. As per the rule, the documents could be provided to the accused only after the sentencing and confirmation (if applicable) of the verdict.

The High Court has observed as under:

“…A trial whether before a Criminal Court or before a General Security Force Court, which does not provide fair and proper opportunities allowed by law to prove innocence violates the right to life and liberty guaranteed to the citizens and non-citizens by Article 21 of the Constitution of India. Apart from various fair trial rights guarantees to an accused facing a criminal trial, right to cross-examine or to have examined witnesses against him and to obtain attendance and examination of the witnesses on his behalf under the same conditions as witnesses against him is well recognized both in International Human Rights Law as well as the domestic law. The right to cross-examine a witness with adequate time and facilities for production of his defence is necessary concomitant of right to fair trial guaranteed to an accused facing a criminal charge…Rule 129 of the Rules, as it is, does take away vital fair trial right of an accused tried under the Act and, therefore, would fall foul of Article 21 of the Constitution of India…”

The Court has also discussed the ambit of Article 33 of the Constitution of India which relates to abrogation of fundamental rights of members of various forces for limited purposes.

The complete judgment, and a report on the same, can be read here at Live Law.

No comments:

Post a Comment

Comments are subject to moderation and must be submitted under your real name. Anonymous comments will not be posted (even though the form seems to permit them).