J&K High Court declares Rule 129 of BSF Rules ultra vires, quashed proceedings of Security Force Court

Mudasir Yaqoob  

Srinagar, April 29: The Jammu and Kashmir and Ladakh High Court declared Rule 129 of the Border Security Force Rules, 1969 Ultra Vires and quashed the partial proceedings of the General Security Force Court (GSFC).

After hearing the advocate Mushtaq Ahmad Dar who represented the peittioner and counsel for respondent, Justice Sanjeev Kumar said that Rule 129 is ultra vires to Fundamental Rights as guaranteed by the Constitution.

“Challenge by the petitioner to Rule  129 of the Border Security Force Rules, 1969 succeeds and the impugned  Rule is declared Ultra Vires to Part-III of the Constitution (Fundamental Rights), particularly Article  21 (Right to Life) of the Constitution,” the Court said.

Court added that the proceedings against the petitioner concluded by the  GSFC 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  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 Court said.

The petitioner has assailed the order of GSFC, whereby the application moved by the petitioner 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.

The petitioner challenged the vires of Rule  129 of the Rules on the ground that it infringes fundamental right of fair  trial guaranteed to the petitioner under the Constitution.

 The Court observed that a criminal trial which may  result in depriving a person of not only of his personal liberty but also his  life, has to be fair, unbiased and without any prejudice for or against the  accused.

“I do not find that Rule 129 of the  Rules is in any manner aimed to ensure proper discharge of duties by the  members of the Border Security Force and maintenance of discipline  among them and, therefore, could be saved on the strength of Article 33 of  the Constitution of India,” the Court added.

Court further observed that Rule 129 of the Rules, as it is, does take away vital fair trial right of an accused, therefore, would fall foul of  Article 21 of the Constitution of India.