Supreme Court Upholds BSF Disciplinary Proceedings: Union of India vs. Mudrika Singh (2021)

Date of the Judgment: 3 December 2021

Citation: 2021 INSC 735

Judges: Dr. Dhananjaya Y Chandrachud, J and A.S. Bopanna, J

Can a disciplinary proceeding be invalidated on hyper-technical interpretations of service rules? The Supreme Court of India recently addressed this question in a case involving a member of the Border Security Force (BSF). The core issue revolved around whether a BSF Commandant had the authority to order an additional inquiry and whether the disciplinary court had to provide detailed reasons for its verdict. The Supreme Court bench comprising Justices Dr. Dhananjaya Y Chandrachud and A.S. Bopanna delivered the judgment.

Case Background

In April 2006, Mudrika Singh, a Head Constable in the BSF, was accused of committing sodomy on a fellow constable while on duty. The incident allegedly occurred on the night of April 16-17, 2006, between 2:00 AM and 6:00 AM. The complainant, a Constable, reported the incident on April 19, 2006. Subsequently, the Commandant directed the Deputy Commandant to prepare a Record of Evidence (RoE) against Singh for “disgraceful conduct of an unnatural kind” under Section 24(a) of the Border Security Force Act, 1968.

During the initial RoE, there was a discrepancy regarding the date of the incident. The complainant stated the incident occurred on April 16, 2006, while other evidence suggested it was on the intervening night of April 16 and 17. Consequently, on June 10, 2006, the Commandant ordered an additional RoE to clarify the date. Following the additional RoE, a Summary Security Force Court (SSFC) was convened, which found Singh guilty and demoted him to the rank of Constable.

Singh then filed a statutory petition, which resulted in a commuted punishment of forfeiture of service for promotion and pension purposes, along with a severe reprimand. Aggrieved, Singh approached the High Court at Calcutta, which ruled in his favor, setting aside the punishment. The High Court held that the Commandant lacked the jurisdiction to order an additional RoE and that the SSFC failed to provide reasons for its decision. The Union of India then appealed this decision to the Supreme Court.

Timeline

Course of Proceedings

The Single Judge of the High Court at Calcutta set aside the punishment order, stating that the original RoE was insufficient and that the Commandant’s order for an additional RoE was beyond his jurisdiction. The Division Bench of the High Court upheld this decision, agreeing that the Commandant lacked the authority to order an additional RoE under Rule 51 of the Border Security Force Rules, 1969, as it stood at the time and that no reasons were provided by the SSFC or the Director-General of BSF for holding the respondent guilty.

Legal Framework

The case primarily involves the interpretation of the Border Security Force Act, 1968, and the Border Security Force Rules, 1969. The key legal provisions are:

• Section 24(a) of the Border Security Force Act, 1968: This section addresses “disgraceful conduct of a cruel, indecent or unnatural kind.” It states:

  “Any person subject to this Act who commits any of the following offences, that is to say, — (a) is guilty of any disgraceful conduct of a cruel, indecent or unnatural kind; or […] shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.”

• Rule 51 of the Border Security Force Rules, 1969: This rule deals with the disposal of cases against enrolled persons by the Commandant after a record or abstract of evidence. The unamended rule stated:

  “51. Disposal of case against an enrolled person by Commandant after record or abstract of evidence .- (1) Where an officer has been detailed to prepare the record of evidence or to make an abstract thereof, he shall forward the same to the Commandant. (2) The Commandant may, after going through the record or abstract of evidence including additional evidence: (i) Dismiss the charge, or (ii) rehear the charge and award one of the summary punishments; or (iii) try the accused by a Summary Security Force Court where he is empowered so to do, or (iv) apply to a competent officer or authority to convene a Court for the trial of the accused.”

  The amended Rule 51(2) in 2011, introduced a provision that states: “If the Commandant considers the evidence recorded insufficient but considers that further evidence may be available, he may remand the case for recording additional evidence.”

• Rule 48 of the Border Security Force Rules, 1969: This rule outlines the process for recording evidence, including the examination and cross-examination of witnesses. It states:

  “48. Record of evidence .- (1) The officer ordering the record of evidence may either prepare the record of evidence himself or detail another officer to do so. (2) The witnesses shall give their evidence in the presence of the accused and the accused shall have right to cross-examine all witnesses who give evidence against him : Provided that where statement of any witness at a court of inquiry is available, examination of such a witness may be dispensed with and the original copy of the said statement may be taken on record. A copy thereof shall be given to the accused and he shall have the right to cross-examine if he was not afforded an opportunity to cross-examine the witness at the Court of Inquiry. (3) After all the witnesses against the accused have been examined, he shall be cautioned in the following terms; “You may make a statement if you wish to do so, you are not bound to make one and whatever you state shall be taken down in writing and may be used in evidence.” After having been cautioned in the aforesaid manner whatever the accused states shall be taken down in writing. (4) The accused may call witnesses in defence and the officer recording the evidence may ask any question that may be necessary to clarify the evidence given by such witnesses. (5) All witnesses shall give evidence on oath or affirmation: Provided that, no oath or affirmation shall be given to the accused nor shall he be cross-examined. (6) (a) The statements given by witnesses shall ordinarily be recorded in narrative form and the officer recording the evidence may, at the request of the accused, permit any portion of the evidence to be recorded in the form of question and answer. (b) Witnesses shall sign their statements after the same have been read over and explained to them. (6A) The provisions of section 89 of the Act shall apply for procuring the attendance of the witnesses before the officer preparing the Record of Evidence. (7) Where a witness cannot be compelled to attend or is not available or his attendance cannot be procured without an undue expenditure of time or money and after the officer recording the evidence has given a certificate in this behalf, a written statement signed by such witness may be read to the accused and included in the record of evidence. (8) After the recording of evidence is completed the officer recording the evidence shall give a certificate in following form : – “Certified that the record of evidence ordered by… ..Commandant… ……………………………………………..was made in the presence and hearing of the accused and the provisions of rule 48 have been complied with”.”

• Rule 149 of the Border Security Force Rules, 1969: This rule specifies how findings are recorded in a SSFC. It states:

  “149. Finding. – (1) The finding on every charge upon which the accused is arraigned shall be recorded and except as mentioned in these rules shall be recorded simply as a finding of “Guilty” or of “Not Guilty” . (2) When the Court is of opinion as regards any charge that the facts proved do not disclose the offence charged or any offence of which he might under the Act legally be found guilty on the charge as laid, the Court shall find the accused “Not Guilty” of that charge. (3) When the Court is of opinion as regards any charge that the facts found to be proved in evidence differ materially from the facts alleged in the statement of particulars in the charge, but are nevertheless sufficient to prove the offence stated in the charge, and that the difference is not so material as to have prejudiced the accused in his defence, it may, instead of a finding of “Not Guilty” record a special finding. (4) The special finding may find the accused guilty on a charge subject to the statement of exceptions or variations specified therein. (5) The Court shall not find the accused guilty on more than one of two or more charges laid in the alternative, even if conviction upon one charge necessarily connotes guilt upon the alternative charge or charges.”

• Rule 6 of the Border Security Force Rules, 1969: This rule provides for situations not specifically covered by the rules, stating:

  “6. Case unprovided for. – In regard to any matter not specifically provided for in these rules, it shall be lawful for the competent authority to do such thing or take such action as may be just and proper in the circumstances of the case.”

• Section 117 of the Border Security Force Act, 1968: This section provides for a remedy against the order, finding, or sentence of a Security Force Court. It states:

  “117. Remedy against order, finding or sentence of Security Force Court.—(1) Any person subject to this Act who considers himself aggrieved by any order passed by any Security Force Court may present a petition to the officer or authority empowered to confirm any finding or sentence of such Security Force Court, and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates. (2) Any person subject to this Act who considers himself aggrieved by a finding or sentence of any Security Force Court which has been confirmed, may present a petition to the Central Government, the Director-General, or any prescribed officer superior in command to the one who confirmed such finding or sentence, and the Central Government, the Director-General, or the prescribed officer, as the case may be, may pass such order thereon as it or he thinks fit.”

• Section 48 of the Border Security Force Act, 1968: This section outlines the punishments that can be awarded by Security Force Courts.

  “48. Punishments awardable by Security Force Courts.— (1) Punishments may be inflicted in respect of offences committed by persons subject to this Act and convicted by Security Force Courts according to the scale following, that is to say, — (a) death; (b) imprisonment which may be for the term of life or any other lesser term but excluding imprisonment for a term not exceeding three months in Force custody; (c) dismissal from the service; (d) imprisonment for a term not exceeding three months in Force custody; (e) reduction to the ranks or to a lower rank or grade or place in the list of their rank in the case of an under-officer; (f) forfeiture of seniority of rank and forfeiture of all or any part of the service for the purpose of promotion; (g) forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose; (h) fine, in respect of civil offences; (i) severe reprimand or reprimand except in the case of persons below the rank of an under-officer; (j) forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active duty; (k) forfeiture in the case of person sentenced to dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such dismissal; (l) stoppage of pay and allowances until any proved loss or damage occasioned by the offence for which he is convicted is made good. (2) Each of the punishments specified in sub-section (1) shall be deemed to be inferior in degree to every punishment preceding it in the above scale.”

Arguments

Arguments by the Appellants (Union of India):

• The High Court adopted a hyper-technical approach, failing to recognize the robustness of the BSF Act, 1968, and BSF Rules, 1969.
• The additional RoE was for “clarificatory evidence,” not “insufficient evidence,” as the complainant had made a minor error regarding the date.
• There is no explicit prohibition against the Commandant ordering additional evidence.
• The 2011 amendment to Rule 51, which allows the Commandant to direct the recording of further evidence, is clarificatory.
• Rule 6 of the BSF Rules, 1969, is broad enough to cover any alleged limitations in Rule 51.
• The High Court’s conclusion that the Commandant usurped the power of a superior authority under Rule 59 is incorrect.
• Neither Rule 149 nor Section 117(2) requires the SSFC or the Director-General to provide reasons for their decisions, as established in Union of India v. Dinesh Kumar.

Arguments by the Respondent (Mudrika Singh):

• Rule 6 applies only to matters not specifically provided in the Rules, whereas Rule 51 specifically outlines the Commandant’s powers.
• The power to record further evidence is conferred only on a superior authority convening a court under Rule 59.
• The Commandant’s order resulted in the same witnesses being examined twice without legal authority, usurping the power of a superior officer under Rule 59.
• The SSFC did not record any reasons to support the conclusion that the charge was proven.
• The additional RoE was ordered to give the prosecution witnesses a second chance to prove the charge.
• The decision of the SSFC is illegal due to the additional RoE being prepared without jurisdiction.
• The SSFC is required to provide reasons to demonstrate an application of mind, and the finding of guilt cannot be based on an ipse dixit order.
• The High Court was correct in holding that the ultimate decision must be informed by reason to comply with Article 14 of the Constitution.

Submissions Table

Issues Framed by the Supreme Court

The Supreme Court addressed the following issues:

1. Whether the Commandant, prior to the 2011 amendment of Rule 51, had the jurisdiction to direct the preparation of an additional RoE.
2. Whether the finding of guilt recorded by the SSFC is vitiated in the absence of reasons.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Supreme Court followed the ratio in Union of India v. Dinesh Kumar [2010] 3 SCC 161*, which held that the SSFC is not required to give reasons in support of its verdict.
• The Supreme Court relied on the principles laid down in S.N. Mukherjee v. Union of India [1990] 4 SCC 594*, which discussed the requirement of recording reasons by administrative authorities.
• The Supreme Court also relied on the decision in Som Datt Datta v. Union of India AIR 1969 SC 414*, which held that there is no general principle that a statutory tribunal should always give reasons in support of its decision.
• The Supreme Court cited Shyam Sunder v. Ram Kumar [2001] 8 SCC 24* to support its view that a declaratory statute operates retrospectively.
• The Supreme Court cited Zile Singh v. State of Haryana [2004] 8 SCC 1* to explain the retrospective operation of clarificatory statutes.
• The Supreme Court also cited S B Bhattacharjee v. S D Majumdar [2007] 10 SCC 513* and O P Lather v. Satish Kumar Kakkar [2001] 3 SCC 110* to highlight that amendments to service rules can be clarificatory and retrospective.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following considerations:

• The need to avoid hyper-technical interpretations of service rules that could undermine disciplinary proceedings, especially in cases of sexual misconduct.
• The understanding that the additional RoE was for clarification purposes and not due to insufficient evidence.
• The interpretation of the 2011 amendment to Rule 51 as clarificatory, thereby having a retrospective effect.
• The recognition that Rule 149 of the BSF Rules, 1969, does not mandate the recording of reasons by the SSFC.
• The importance of upholding the spirit of the right against sexual harassment and ensuring that procedural technicalities do not impede justice.

Sentiment Analysis:

Fact:Law Ratio:

The Court’s reasoning was heavily influenced by legal precedents and statutory interpretations.

Logical Reasoning

Ratio Decidendi

The ratio decidendi of the judgment can be summarized as follows:

• A Commandant of the Border Security Force (BSF) has the inherent power, under the Border Security Force Act, 1968, and the Border Security Force Rules, 1969, to direct the preparation of an additional Record of Evidence (RoE) to clarify discrepancies in the evidence. This power is incidental to their authority under Rules 48 and 51, and the 2011 amendment to Rule 51 is clarificatory and has retrospective effect.
• A Summary Security Force Court (SSFC) is not obligated to record reasons for its findings of guilt, as Rule 149 of the Border Security Force Rules, 1969, does not mandate such a requirement. This position is consistent with the precedent set in Union of India v. Dinesh Kumar.

Obiter Dicta

The following points can be considered as obiter dicta:

• The court emphasized the need to avoid hyper-technical interpretations of service rules that could undermine disciplinary proceedings, especially in cases of sexual misconduct.
• The court underscored the importance of ensuring that procedural technicalities do not impede justice and that the spirit of the right against sexual harassment is upheld.

Conclusion

The Supreme Court’s judgment in Union of India vs. Mudrika Singh (2021) clarified important aspects of disciplinary proceedings within the Border Security Force (BSF). The Court held that a Commandant has the jurisdiction to order additional RoE for clarification purposes and that a Summary Security Force Court (SSFC) is not required to record reasons for its findings. The judgment emphasized the need to avoid hyper-technical interpretations of service rules and to ensure that procedural technicalities do not impede justice, especially in cases of sexual misconduct. The Supreme Court overturned the High Court’s decision, thereby upholding the disciplinary proceedings against Mudrika Singh.