UNION OF INDIA AND ORS. versus EX.FLT. LT. G.S. BAJWA

Citation: [2003] 3 S.C.R. 1092 · Decided: 02-05-2003 · Supreme Court of India · Bench: N. SANTOSH HEGDE · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
UNION OF INDIA AND ORS. 
v. 
EX.FLT. LT. G.S. BAJWA 
MAY 2, 2003 
B 
[N. SANTOSH HEGDE AND B.P. SINGH, JJ.] 
Service law: 
Air Force Act, 19501Sections41(2) and 65/Rules 89, 100, 102, I JO, I I I 
C and 125: 
Air Force Officer-Dismissal ji-om service by the General Court Martial 
on ground of disobedience/misconduct-Challenge to--Reversed by the High 
Court directing reinstatement on ground of denial of opportunity to defend-
D Right lo defend vis-a-vis provisions in the Act restricting legal aid- Held: 
Since Parliament/legislature could restrict/abrogate any fundamental right 
by enacting a law under the provision of Article 33, such law could override 
Articles 2 I and 22 oft he Constitution of India-In the absence of any provision 
to provide legal assistance and as respondent was an Officer, his claim for 
engaging an advocate of his choice al the State expense on ground of poverty! 
E indigence not justified-Since respondent chose to defend himself and dispensed 
with the services of 'ji-iend of the accused', he was not prejudiced in his 
defence on account of State not providing him defence counsel-Constitution 
of India, 1950; Articles 2 I, 22 and 33. 
Court Martial Proceedings-Role of Judge Advocate-Held: Judge 
F Advocate is not partisan, he neither holds a brief for !he prosecutor nor for 
the defence-He ensures fair /rial/guide !he Court Martial with due care that 
accused does no/ suffer because of his position as such. 
Court Martial Proceedings-Examination of defence witnesses vis-a-vis 
G relevancy of witnesses-Denial of opportunity to defend-Held: Since 
respondent was charged/or disobedience, relevancy ofother colleagues/officers 
as defence witnesses is doub1jitl-Hence not granling of sufficient time for 
eliciting response ji-0111 such witnesses was justified and does not amount to 
denial of opportunity to defend 
H 
1092 
U.0.1. v. EX.FLT. LT. G.S. BAJWA 
1093 
Administrative Law: 
Court Martial Proceedings-Non-supplying of copies of day to day 
proceedings-Principles of Natural Justice-Held: Though respondent was 
not entitled to a copy of day to day proceedings, he was not p1,evented from 
inspecting the proceedings-Hence, principles of Natural .Justice not violated-
A 
Practice and Procedure. 
B 
Words and Phrases: 
'Relevancy of witnesses', 'Judge Advocate' and 'ji-iend of accused'-
Meaning of 
According to the respondent, an Air Force officer, he was harassed 
by the authorities at the instance of the then Air Marshal. He was illegally 
and improperly admitted in the hospital for psychiatric treatment. He was 
also asked to undergo medical examination with a view to re-categorization 
c 
of his medical category but he did not obey the order as it was patently D 
illegal. A Court Martial was ordered and he was charged and tried for 
offences under Sections 41(2) and 65 of the Air Force Act. The General 
Court Martial found him guilty and passed an order of dismissal from 
service. Aggrieved, respondent filed a writ petition which was allowed by 
the High Court directing his reinstatement and payment of back wages 
mainly on the ground of denial of his fundamental rights in not permitting E 
him to be represented by a counsel of his choice at the expense of the State. 
It was contended for the appellant-Union of India that since under 
Article 33 of the Constitution of India Parliament could modify/abrogate 
the fundamental rights in its application to the members of Armed Forces; 
and that in a Court Martial, the authorities were not required to provide F 
a counsel at State expenses to the respondent. 
On behalf of the respondent, it was submitted that since the power 
to convene a Court Martial could not be delegated, the order convening 
the Court Martial was unauthorised and illegal; that since the order G 
direeting the respondent to undergo a medial examination for 
categorisation of his medical category was illegal, he was not bound to obey 
the same; and that he was not allowed to examine himself as a defence 
witness. 
Allowing the appeal, the Court 
H 
1094 
SUPREME COURT REPORTS 
[2003] 3 S.C.R. 
A 
HELD: I.I. The High Court neither itself noticed the provisions of 
Article 33 of the Constitution of India nor does it appear to have been 
brought to its notice. The Parliament, in exercise of powers conferred by 
Article 33 of the Constitution of India, can restrict or abrogate the 
fundamental rights guaranteed under Part Ill of the Constitution in its 
B application to the memb

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