Union of India and Ors v. Mudrika Singh: Civil Appeal No. 6859 of 2021

Bench: Justices D.Y. Chandrachud and A.S. Bopanna.
Counsel: Additional Solicitor General Madhavi Divan for the appellants and Advocate Rabin Majumder for the respondent.

It is also important to be mindful of the dynamics that are mired in sexual harassment at the workplace. There are several considerations and deterrents that a subordinate aggrieved of sexual harassment has to face when they consider reporting sexual misconduct of their superior…

Introduction

This appeal by the Union of India and officials of the Border Security Force (BSF) arises from a judgment of the Division Bench of the Calcutta High Court. The respondent, a Head Constable at the BSF, was alleged to have been involved in disgraceful conduct of unnatural kind under Section 24(a) of the Border Security Force Act.

The incident took place in April 2006, following which the Commandant ordered his deputy to prepare a Record of Evidence (RoE) against the accused. Upon the submission and analysis of this RoE, the Commandant noticed that there was an inconsistency regarding the date of the incident’s occurrence in the statements of the witnesses. Thence, he ordered the preparation of an additional RoE, upon the receipt of which the Summary Security Force Court (SSFC) was ordered to convene to try the accused. The SSFC convened on 7th August 2006 and held the accused guilty of the charges faced, demoting him to the rank of a constable.

As a response, the accused filed a statutory petition to the Director-General of the BSF, challenging his conviction. The petition was disposed of by the Director-General but the respondent’s punishment was commuted owing to his contribution to the force and his years of service. Consequentially, the accused approached the Calcutta High Court under Article 226 of the Constitution of India.

A Single Judge of the High Court by an order dated 7 May 2009, held that the original RoE was not sufficient to prove the charge against the accused and the Commandant had exceeded his jurisdiction by ordering an additional RoE. This order was upheld by the Division Bench as well on 18 October 2018 and the respondent was freed from all disciplinary proceedings and reinstituted to his original position.

Factual Matrix

The complainant, in this case, is a Constable in the Border Security Force who was on Naka/patrol duty on the night of 16th April 2006 and the subsequent morning of 17th April 2006. While on duty, during the hours between 2:00 to 6:00, it is alleged that the respondent, the Head Constable Mudrika Singh, committed an act of sexual offence (sodomy) on the complainant.

After the judgment of the Calcutta High Court which disposed the accused of all charges against him, the Union of India and officials of the Border Security Force approached the Supreme Court of India to challenge the same and put under assessment the ‘hyper-technical view’ that the Single Judge and Division Bench of the Calcutta High Court had taken while deciding the matter.

Arguments by Counsels

Madhavi Divan (for the appellant):

It was Additional Solicitor General Madhavi Divan’s contention that the Commandant’s order for the preparation of additional evidence was done with an object to procure a more ‘clarificatory’ evidence with respect to the time of occurrence of the incident. Thus, this does not fulfil the grounds for ‘insufficient’ evidence as provided under Rule 59 of the Border Security Force Rules 1969. The Commandant was well in his power to order such additional evidence as the same is not prohibited under any rule or statute. Furthermore, Rule 51 of the BSF Rules was amended in 2011 and clause (2) of 51 was inserted, which gave express power to the Commandant to direct the recording of additional evidence.

Also, Rule 6 is solely competent enough to cover any such actions of the Commandant. Therefore, the High Court’s judgment that the Commandant exceeded his jurisdiction under Rule 59 is not reasonable. It was also argued by the appellants that there are no provisions in the BSF Rules that require the Summary Security Force Court or the Director-General to provide reasons in support of their orders. For this argument, the counsel for the appellant also took reliance on the case of Union of India v. Dinesh Kumar.

The counsel on behalf of the appellants also stated that the High Court of Calcutta had taken a ‘hyper-technical view’ of the matter and had not taken into adequate consideration the BSF Rules, both of 1968 and 1969, for the purpose of deciding the matter.

Rabin Majumdar (for the respondent):

In response, Advocate Rabin Majumdar argued that Rule 6 of the BSF Rules 1969 is not applicable in this case because its applicability is limited to subjects that are not specifically covered in the rules. Rule 51 specifically states the powers of a Commandant and it does not include the power to order the preparation of an additional Record of Evidence. As per Rule 59, this power is placed with a superior office and any court that is ordered to convene by the Commandant for trial. Hence, the additional evidence recorded is unlawful and does not have any validity.

It was also argued that the SSFC had recorded no reasons to back up their conclusion that the accused was guilty. According to the respondent, the facts suggest that the original evidence prepared was insufficient to hold him guilty, hence in order to prove the charge, the Commandant ordered the preparation of additional evidence, which he did not have the authority to do. The accused was then held responsible on the new RoE, which is not valid in the eyes of law, hence the decision of SSFC is ‘vitiated by incurable illegality’.

The counsel for the respondents held firm in their opinion that the High Court of Calcutta in its decision to dispose the respondent from all charges by a Single Judge and a Division Bench was justified. Their view that the furnishing of reasons while deciding on holding someone guilty is necessary is supported by Rule 151 of the BSF Rules.

Court’s Observation & Verdict

The Supreme Court observed that on the issue of the recording of additional evidence, it can be understood by an assessment of the facts of this case that the order for additional evidence was made by the Commandant in order to rectify the slight discrepancy in the time of occurrence as the incident unfolded in the intervening night of 16th April and early hours of 17th April. Thus, clarification with respect to the events that had a place in the early hours of 17th April 2006 was required so as to avoid any ambiguity.

On the question of the Commandant’s jurisdiction, the court highlighted Rules 48 and 51 of the BSF Rules and also considered the amendment to Rule 51, which provided a Commandant with the authority to remand the case for the recording of additional evidence [Rule 51(2)]. The court took reliance on the case of Shyam Sunder v. Ram Kumar and Zile Singh v. the State of Haryana and stated that even though the amendment came after the happenings of this particular case, the amendments which are clarificatory or declaratory in nature are understood to operate retrospectively even if there is no explicit mention of them being retrospective. ‘In our view, the power to order additional RoE is incidental to realize the purpose of Rules 48 and 51. In any event, residual powers under Rule 6 would protect this action.’ Hence, the court stated that the Commandant had not exceeded his jurisdiction in any way whatsoever.

On the question of recording of reasons by the SSFC, the court took reliance on multiple case laws and precedents which clearly explained that recording of reasons is not essential when the charge is substantiated by the evidence on record. Some of the cases were Union of India v. Dinesh Kumar (Supra) and S.N. Mukherjee v. Union of India.
The court also recognized the rise in the invalidation of cases involving sexual misconduct due to hyper-technical interpretations and perceptions of the applicable laws, which are in place to provide relief and justice. If the process of seeking justice is turned into a punishment, it will be counter-productive to the objective of these laws which are put in place to provide relief and the same will cease to come to the aid of people who are in need of it. In this case, as well, the question of the time of occurrence was of a trivial nature but it was nevertheless held to be of ‘monumental relevance’.

‘The High Court of Calcutta demonstrated a callous attitude to the gravamen of the proceedings.’ The court reinstated the need to be mindful of the power dynamics which have an extremely important role to play in cases involving sexual harassment at workplace and highlighted Article 21 of the Indian Constitution, which provides for the right to life and dignity. The appeal was allowed and the judgment of the Single Bench and Division Bench of the Calcutta High Court was set aside. The writ petition filed by the respondent was also declared to be dismissed.

About the Author, Sanskriti [2020-25] is pursuing BBA.LL.B(Hons) from the Gujarat National Law University.

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