MUSHTAQ AHMAD MALIK vs UNION OF INDIA (MINISTRY OF DEFENCE) AND ORS.

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR


WP (C) No. 1945/2024
Reserved on: 06.05.2026
Pronounced on: 14.05.2026
Uploaded on: 14.05.2026
Whether the operative part or full
judgment is pronounced: Full

Mushtaq Ahmad Malik, Age 36 years
S/O Farooq Ahmad Malik
R/O Lawaypora Bandipora
Through his father Farooq Ahmad Malik


…Petitioner(s)/Appellant(s)
Through: Ms. Nida Nazir, Adv.
Vs.

1. Union of India through Ministry of Sectary Defence,
New Delhi, India
...Respondent(s)
2. Chief of the Army Staff, IHQ Of Ministry Of Defence
(Army), New Delhi
3. Director (AG), Ministry Of Defence,
Department of Military Affairs New Delhi

4. Commanding Officer, 13 Engineer Regiment
C/O 56- APO Sonawar Srinagar

5. Lieutenant Officer Commanding 15 Corps,
C/O 56-ΑΡΟ

6. Major Adjt; 13 Engineering Regiment,
C/O 56-APO Sonawar Srinagar.

Through: Mr Tahir Majid Shamsi, DSGI with
Mr. Faizan Ahmad Ganie, CGSC
Ms. Rehana Qayoom, Adv.
Mr Pawandeep Singh, Officer Incharge, Legal Cell (Army)
CORAM:
HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON’BLE MR. JUSTICE SANJAY PARIHAR, JUDGE

J U D G M E N T

Sanjeev Kumar: J
1. This petition filed by one Mushtaq Ahmad Malik under Article 226 of
rd
the Constitution of India seeks to challenge an order and judgment dated 23
April 2024 passed by the Armed Forces Tribunal, Regional Bench, Srinagar

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at Jammu [“the Tribunal”] in OA No. 235/2023 whereby the appeal filed by
the petitioner against order of his conviction passed by Summary General
Court Martial has been dismissed on the ground that it was not accompanied
by a certified copy of the order.
2. The impugned judgment passed by the tribunal is challenged by the
petitioner primarily on the ground that the proceedings of Summary General
Court Martial were not supplied to the petitioner by the respondents by
taking shelter under Rule 147 of the Army Rules 1954 [“the Rules”].
3. It is contended that the tribunal could not have insisted for certified
copy of the order of conviction and sentence passed by Summary General
Court Martial when the copy whereof was never supplied to the petitioner.
Additionally, the petitioner has also thrown challenge to the constitutional
validity of Rule 147-A on the ground that its provisions are violative of
Article 14 and 21 of the Constitution of India and that the protection
available under Article 33 of the Constitution is available to the Act/Acts of
legislature and does not extend to subordinate legislation or the rules framed
under the Army Act 1950 [“the Act”].
4. The writ petition is contested by respondents. It is submitted by
respondents that in view of clear provisions of Rule 147-A, the copies of
proceedings of Summary General Court Martial may be denied in a case
where Central Government certifies that it is against the interest of security
of the State or friendly relations with foreign States to supply a copy of the
proceedings or any part thereof under Rule 147. It is thus submitted that in
view of the aforementioned certificate issued by the Central Government,
the petitioner was denied the copies of Summary General Court Martial
proceedings. The copy of the certificate issued by the Central Government

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st
was supplied to the petitioner vide Communication dated 31 May 2023.
The constitutionality of Rule 147-A is defended by placing reliance upon the
provisions of Article 33 of the Constitution of India.
5. Having heard learned counsel for the parties and perused the material
on record, we deem it appropriate to first set-out Rule 147 and 147-A of the
rules hereinbelow:
147. Right of person tried to copies of proceedings:-
[Every person tried by a Court-Martial (other than
summary Court-Martial) shall, after the proceedings have
been signed by the presiding officer and in the case of
summary Court-Martial the officer holding the trial, and
before they are destroyed, on a request made by such
person in writing to the Court or the officer holding the
trial or the person having the custody of his proceedings,
be entitled for the supply of a copy of such proceedings,
within a reasonable time and free of cost, including the
proceedings upon revision, if any.]

[147-A. Copy of proceedings not to be given in certain
cases:- Notwithstanding anything contained in rule 147, if
the Central Government certifies that it is against for
interests of the security of the State or friendly relations
with foreign States to supply a copy of the proceedings or
any part thereof under the said rule, he shall not be
furnished with such copy:
Provided that if the Central Government is satisfied
that the person demanding the copy is desirous of
submitting a petition in accordance with the Act or
instituting any action in a Court of law in relation to the
finding or sentence, it shall permit inspection of the
proceedings to such person or his legal adviser, if any, on
the following conditions, namely:-


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(a) the inspection shall be made at such times and such
places as the Central Government or any authority
authorised by it, may direct; and

(b) the person allowed to inspect the proceedings shall,
before such inspection furnish-

(i) an undertaking, in writing, that he shall not make
copies of the proceedings or any part thereof and
that the information or documents contained in
such proceedings shall not be used by him, for any
purpose whatsoever other than for the purpose of
submitting a petition in accordance with the Act or
instituting an action in a Court of law in relation to
the said finding or sentence; and

(ii) a certificate that he is aware that he may render
himself liable to prosecution under sections 3 and 5
of the Indian Official Secrets Act, 1923 (19 of
1923), if he commits any act specified in the said
sections in relation to the documents or
information contained in the said proceedings.]

6. From reading of Rule 147, it clearly transpires that every person who
is tried by a court-martial (other than summary court-martial), is entitled, on
request made in writing, for the supply of copy of court-marshal proceedings
within a reasonable time and free of cost.
7. Section 147-A is an exception to Rule 147 and lays down that if the
Central Government certifies that it is against the interests of security of
State or friendly relations with foreign States to supply a copy of the
proceedings or any part thereof under Rule 147, the person tried by a court-
martial shall not be furnished the copy of such proceedings.
8. The person demanding the copy of the proceedings, shall be permitted
inspection of the proceedings, either in person or through his legal advisor if

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he intends to submit a petition in accordance with the Army Act or submit
any action in the court of law in relation to finding of sentence of the court
martial. The inspection is, however, subject to certain conditions which are
enumerated in section 147-A itself. From the reading of Rule 147-A, it
further transpires that access to the proceedings of court martial culminating
into a finding or sentence are not completely barred though in a case where
the Central Government certifies that it is against the interest of security of
State or friendly relations with foreign states to supply the copies of such
proceedings, the person tried by court martial shall be denied the copy of
such proceedings. However, such person is permitted either in person or
through his legal advisor to inspect the proceedings where he is desirous of
submitting a petition to an authority under the Act or institute any action in a
court of law.
9. The question that arises for determination in this petition, however, is
whether Section 147-A which prima facie tramples the right of a person to
fair trial and take recourse to appropriate legal proceedings and, thus,
offends Article 14 and 21 of the Constitution of India is saved by Article 33
of the Constitution of India. Article 33 which is contained in Part-III of the
Constitution of India is itself a part of the Chapter of Fundamental Rights.


10. Before we proceed further, it would be appropriate to set-out Article
33 hereinbelow:-
[33. Power of Parliament to modify the rights
conferred by this Part in their application to Forces,
etc. - Parliament may, by law, determine to what extent
any of the rights conferred by this Part shall, in their
application to,-
(a) the members of the Armed Forces; or

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(b) the members of the Forces charged with the
maintenance of public order; or
(c) persons employed in any bureau or other
organisation established by the State for purposes of
intelligence or counter intelligence; or
(d) persons employed in, or in connection with, the
telecommunication systems set up for the purposes of any
Force, bureau or organisation referred to in clauses (a) to
(c),
be restricted or abrogated so as to ensure the proper
discharge of their duties and the maintenance of
discipline among them.]
11. From plain reading of Article 33, it is abundantly clear that the
Parliament is empowered to modify or restrict the rights conferred by Part-
III of the Constitution in their application to the Armed Forces. This,
however, can be done by the Parliament by making law to determine as to
what extent any of the fundamental rights shall, in their application to the
members of the armed forces, be restricted or abrogated so as to ensure the
proper discharge of their duties and the maintenance of the discipline among
them. The Rules of 1954 are framed by the Government in the exercise of
powers conferred by Section 191 of the Army Act, 1950, and all other
powers enabling in this behalf. Section 191 of the Army Act gives power to
the Central Government to make rules for the purpose of carrying into effect
the provisions of the Act.
12. The power to frame rules conferred upon the Central Government
inter alia includes the laying down of procedure to be observed in trials by
court martial and the appearance of legal practitioners thereat as well as for
confirmation, revision and annulment of, and the petitions against the
findings and sentences of court-martial, etc. It is in the exercise of these

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wide powers conferred upon the Central Government, the Army Rules of
1954 have been framed.
13. It is not the argument of the learned counsel for the petitioner that
Rule 147-A is beyond the rule-making power of the Government. What is
however, strenuously argued before us is that the fundamental rights in
relation to their application to the armed forces can be curtailed or abrogated
only by law made by the Parliament i.e., by an act of legislature and not by
the rules framed by way of subordinate legislation.
14. From a careful reading of Article 33, it would become evident that the
provision talks about the law made by the Parliament and not the act of
Parliament. The rules framed by the Government under the authority
delegated under the Act is nothing but a law made by the Parliament.
15. The Central Government framed the Army Rules in the exercise of
power conferred upon it by the Parliament in terms of Section 191 of the
Army Act, 1950. It is, therefore, an argument in despair that the fundamental
rights in relation to armed forces can be abrogated or restricted only by an
Act of Parliament. To emphasize, we would like to reiterate that the
expression “law” used in Article-33 encompasses the rules made by the
Government under the delegated authority conferred upon it by the Act
framed by the Parliament.
16. In view of the clear provisions of Article-33, the validity of Rule 147-
A of the Rules cannot be assailed on the ground that it violates Article 14
and 21 of the Constitution of India.
17. The issue with regard to the constitutional validity of Rule 147-A was
adjudicated upon by a Single Bench of this court in the case of Mulkh Raj
vs. Union of India & Ors. (1983) CRILJ 1794. wherein the learned Single

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Bench of this court after considering the rival conventions of the parties
upheld the constitutional validity of Rule 147-A. We fully concur with and
give our imprimatur to the view taken by the learned Single Judge in Mulkh
Raj (supra).
18. Article 21 which, as argued by learned counsel for the petitioner, is
offended by Rule 147-A merely provides that no person shall be deprived of
his life or personal liberty except according to procedure established by law.
As is held in the famous case of Maneka Gandhi vs. Union of India AIR
1978 SC 597 the procedure established by law that deprives a person of his
life or personal liberty must be a valid law and a law would be valid only if
it is just, fair and reasonable. Rule 147-A framed by the Central Government
under Section 191 of the Army Act is indisputably a law made by the
Parliament and, therefore, protected by Article 33 of the Constitution of
India. Although, the term “law”, used in Article 33, has not been separately
defined, yet we can seek assistance to interpret the term by making a
reference to Clause 3(a) of Article 13, which for quick reference is
reproduced hereunder:
Article 13(3) (a): In this Article, unless the context otherwise
requires:-
(a) “law” includes any Ordinance, order, bye-law,
rule, regulation, notification, custom or usage
having in the territory of India the force of law;


19. It is thus evident that the law for the purpose of Article 13 includes the
Ordinance bye-law, rule and regulations having the force of law in the
territory of India.
20. Different meaning to the term ‘law’ used in Article 33 of the
Constitution of India is neither called for nor desirable.

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21. From reading of the scheme of the Act and the rules framed
thereunder, there is enough inbuilt mechanism provided to afford a fair and
adequate opportunity to the person before the court martial. It is only in a
case where the Central Government certifies that providing of copy of the
court martial proceedings to the person tried by it may be against the interest
of security of State or the friendly relations with foreign States, it shall
refuse to furnish such copy to the person tried by the court-martial.
22. The person like petitioner who has been tried by the court-martial
cannot feign ignorance about the proceedings conducted by the Court
Martial, for, not only he is given full opportunity to participate in such
proceedings, but is also ensured all the safeguards so as to enable such
person to contest the proceedings and put up his defense.
23. We would not like to go into the various provisions of the Army Act
and the rules framed thereunder which act as sheet anchor for the person
tried by the court martial against any arbitrariness and procedural unfairness
in the proceedings.
24. In view of the aforesaid discussion, we are of the considered opinion
that Rule 147-A is protected by Article 33 of the Constitution and, therefore,
cannot be said to be ultra virus the Constitution. Having said that we cannot
lose sight of the fact that the tribunal has dismissed the appeal filed by the
petitioner against his conviction and sentence by the Summary General
Court Martial on the ground that it did not accompany the certified copies.
25. Mr. Tahir Shamsi has produced the relevant record before us, a perusal
whereof indicates that the father of the petitioner was intimated that his son,
the petitioner, has been tried by the Summary General Court Martial on 5th
October 2022. The required details like offence for which sentence has been

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awarded and the punishment awarded etc. has also been shared with the
father of the petitioner.
26. Be that as it may, having regard to the fact that in the instant case, the
petitioner was legitimately denied the copies of the proceedings of the court
martial under Rule 147-A, the tribunal ought not to have insisted for the
certified copy of the order of conviction and sentence. The tribunal ought to
have summoned the record of the General Court Martial Proceedings in a
sealed cover and examined the appeal of the petitioner on merits.
27. The tribunal has avoided the performance of its statutory obligation of
considering the appeal of the petitioner on merits and, therefore, the order
impugned passed by the tribunal is not sustainable in law.
28. For the foregoing reasons, the order passed by the tribunal impugned
in this petition is set-aside . The appeal filed by the petitioner is restored to
its original number.
29. The tribunal shall proceed to consider the appeal on merits after
summoning the record of the Summary General Court Martial and shall in
strict compliance with Rule 147-A of the rules provide opportunity to the
petitioner or his counsel to inspect the proceedings subject, of course, to the
conditions laid down in Rule 147-A itself. The appeal of the petitioner shall
be determined on merits and decided as expeditiously as possible.

(SANJAY PARIHAR) (SANJEEV KUMAR)
JUDGE JUDGE
SRINAGAR:
14.05.2026
Altaf

Whether approved for reporting? Yes

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