HC declares Rule 129 of BSF Rules ultra vires Constitution

HC declares Rule 129 of BSF Rules ultra vires Constitution
J&K High Court, SrinagarMubashir Khan/GK File

Srinagar, Apr 29: High Court of J&K and Ladakhhas declared Rule 129 of the Border Security Force Rules as “ultra-vires” the Constitution, underscoring that the same infringes the fundamental right of fair trial of the accused.

Quashing the criminal proceedings concluded by the General Security Force Court( GSFC) against a BSF personnel,Rovinder Kumar, from the stage of “leading defence evidence”, a bench of Justice Sanjeev Kumar said the court fails to understand as to how by restricting right of the accused to obtain certified copies of the proceedings and the statement of prosecution witnesses recorded during trial against an accused would help in proper discharge of the duties of members of the force and how it will help in maintaining discipline among them.

In this petition, Kumar, who is facing criminal trial before the GSFC challenged orders dated 27th July, 2018 and 25th September, 2018 passed by the Chief Judicial Magistrate ( CJM), Bandipora, whereby the charge-sheet presented against him before the CJM had been transferred and handed over to the CGSFC constituted under the Border Security Force Act. He has also assailed the order of GSFC, whereby the application moved by him for issuance of certified copies of the proceedings including statement of prosecution witnesses had been rejected by relying upon Rule 129 of the Border Security Force Rules, 1969. He had infact challenged the Rule 129 of the Rules on the ground that it infringes fundamental right of fair trial guaranteed to him under the Constitution of India.

“The fair trial right of an accused is an individual right conferred on the accused facing trial and has nothing to do with the maintenance of discipline in the force or is not in any manner in derogation of proper discharge of duties by members of the force,” the court said, adding, “It is, thus, not correct to say that the Parliament under Article 33 has unbridled and overarching power to enact law abridging or modifying the fundamental rights or any of them, in their application, to the members of the forces.” Such power ought to be and must be exercised only to ensure proper discharge of duties by the members of the armed forces and maintenance of discipline among them, the court said.

Allowing the challenge by the soldier to Rule 129 of the Border Security Force Rules, 1969 and the court declared the Rule “ultra vires part III of the Constitution, particularly Article 21 of the Constitution”.

“Proceedings against the petitioner (Kumar) concluded by the General Security Force Court are quashed from the stage of leading defence evidence. The matter shall be taken up by the General Security Force Court from the stage of conclusion of the prosecution evidence,” the court said, adding, “The petitioner shall be provided certified copies of the proceedings as also the copies of the statements of prosecution witnesses recorded during trial against or in favour of the petitioner before asking the petitioner to enter his defence.” The General Security Force Court, the court said, shall proceed with the trial and conclude the proceedings with reasonable dispatch, of course, strictly as per the provisions of the Act and the Rules framed thereunder.

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