By way of background, the writ of quo warranto provided by the constitution enables a citizen to challenge and question the authority of a person who exercises the power of a certain office. It is not just confined or limited to “questioning the authority of that particular person”, but it also extends to the very post, position or office which gives the person sitting in it the authority that the person so exercises. In simpler words, you can challenge the legitimacy and legality of the very source through which the office derives power.
The writ of quo warranto provided by the constitution enables a citizen to challenge and question the authority of a person who exercises the power of a certain office.
Our college i.e. the Army Institute of Law (“AIL”) is a private institution which was established under the aegis of the Army Welfare Education Society (“AWES”) and is in effect affiliated to this society. The reason that the word “affiliated” has been used is that the society does not manage the day to day functioning of the college. It does not run the college, it merely supervises it. The college is in fact under the command of the Chairman. Not even a leaf moves without his express will in the institution. All decisions pivotal to managing the college like the infrastructure, building, security, finances, events, functions and staff are taken by the Chairman. Although the college has been established by AWES, all these powers that lie with the Chairman, make him nothing less than the charioteer of AIL, as he decides which direction the institution must take.
Now, the Chairman of AIL, who runs the fort called AIL, is a serving Major General posted in the Western Command Headquarters. The post of the Chairman of AIL is an ex-officio post that comes with the office of Major General (AOC), Headquarters Western Command. The perturbing question that emanated from these circumstances is whether a serving army officer can serve as the Chairman of a private institution which has been established by a private society i.e. AWES.
Let us have a look at the relevant provisions and statutes governing the Armed Forces in this regard:
- The Indian Army is governed by the Army Act, 1950. Section 21 of this act deals with personnel taking part in certain organizations as under:
“Section 21. Power to modify certain fundamental rights in their application to persons subject to this Act.—Subject to the provisions of any law for the time being in force relating to the regular Army or to any branch thereof, the Central Government may, by notification, make rules restricting to such extent and in such manner as may be necessary the right of any person subject to this Act— (a) to be a member of, or to be associated in any way with, any trade union or labour union, or any class of trade or labour unions or any society, institution or association, or any class of societies, institutions or associations; (b) to attend or address any meeting or to take part in any demonstration organised by any body of persons for any political or other purposes; (c) to communicate with the press or to publish or cause to be published any book, letter or other document.”
- Abiding by the mandate of Section 21, the legislature enacted the Army Rules, 1954. Rule 19 of these rules elucidate the consequences of an officer taking part in the working of a society or organization.
“Rule 19. Unauthorised organisation —No person subject to the Act shall, without the express sanction of the Central Government—
(i) take official cognizance of, or assist or take any active part in, any society, institution or organisation, not recognised as part of the Armed Forces of the Union; unless it be of a recreational or religious nature in which case prior sanction of the superior officer shall be obtained;
(ii) be a member of, or be associated in any way with, any trade union or labour union, or any class of trade or labour unions.”
On reading the aforesaid provisions in tandem, it appears that for a serving army personnel to be associated with a society, or even assist or take an active part in it, prior sanction has to be sought from the Central Government. If one was to consider the role of the Chairman of AIL in light of these provisions, it can be safely said that in dispensing functions as Chairman of AIL, the Major General (AOC) would be violating the statute that governs the said post.
Considering the above-said legislations, governing the armed forces personnel, any association with a society which does not form part of or is not recognized by the Armed Forces of the Union shall be illegal subject to the prior sanction of the Central Government.
Therefore, the origin and legal status of the AWES would have to be analyzed – whether it is a private society or does it form a part of the Armed Forces of the Union? Here, it will be pertinent to note that in the matter of Surinder Singh & Others Vs Union of India & others (CWP 50214 of 2015), wherein the dispute was between certain employees of AIL and the management, and wherein AWES was impleaded as Respondent no. 4. Preliminary objection as to the maintainability of the writ petition was taken by AWES stating that they were a private registered society and were managing their own funds, no part of which was granted by the government. The stand of the AWES itself in a court of law is enough evidence of the fact that they, in fact, are a private society.
In these facts, the moot question which arises is, whether the Major General AOC (also, Chairman of AIL) or any other serving officer in the army who is assisting, planning and deciding the future course of a college and its students and taking active part in the functioning of AWES and the institutions established under it, is violating Rule 19 of the Army Rules, 1954.
And if the appointment of Chairman of AIL is contrary to Rule 19 of the Army Rules, 1954, does the Chairman have any authority, to begin with? Should he be given the power to decide the lives of the students at AIL especially given the fact that he is always at distance from the institute? Should he be making decisions that affect the day to day functioning of the institution?
And if your response is in the affirmative to the above questions, we beg the question of whether the same is legitimate?
Or you can just follow this guy below!
This article was contributed by Sushant Kareer, a Blue Pencil Alumni (Class of 2017).
P.S: All the information published on this website, or in any article herein is true and accurate to the best of the authors’ knowledge and is based on the information readily available to them.
1 comment
Craaaaazy!