who is governed by any order passed by any Court Martial, can present
a petition to the officer or authority empowered to confirm any
finding or sentence of such Court Martial and the confirming authority
can take such steps as may be considered necessary to satisfy itself
about the correctness, legality or propriety of the order passed or
the regularity of any proceedings to which the order relates and the
punishment is awarded. Any person who is aggrieved by a finding or
sentence of a Court Martial which has been confirmed, may further
present a petition to the Central government, the chief of the Army
Staff or any prescribed officer superior in command to the one who
confirmed such finding or sentence and the latter, as the case may be,
may pass such an order thereupon as it or he thinks fit. The
Constitution of India expressly excludes the power of the Supreme
Court to grant leave to appeal from any judgement, decree or
determination, sentence or order in any cause or matter made by a
Tribunal constituted by or under any law relating to the Armed Forces.
So also the High Courts have been precluded from exercising any power
of superintendence over any court or Tribunal constituted by or under
any law relating to the Armed Forces. The rationale behind this
non-interference of the civil courts is apparently founded upon the
consideration that the military tribunals have complete knowledge of
the controversy and they can and will do fair and impartial justice to
the accused and his accusers.
Notwithstanding the absence of a right of appeal, military
tribunals area, to a limited extent, subject to the control and
supervision of the High Court and the Supreme Court.
Under Articles 32 and 226 of the constitution of India, the Supreme
Court and every High Court of India has the power throughout the
territory in relation to which it exercises jurisdiction to issue to
any person or authority any directions, orders or writs including the
writ in the nature of habeas corpus, mandamus, prohibition or quo
warranto and certiorari or any of them for the enforcement of
fundamental rights conferred by Part III of the constitution of India.
The bar of Articles 136(2) and 227 of the constitution does not,
however, find place in Articles 32 and 226 of the Constitution and
Court Martials are thus amenable to the writ jurisdiction of the
Supreme Court and the High Courts under Article 226 of the
Constitution. This is that while the Supreme Court can exercise its
writ jurisdiction only for the enforcement of fundamental rights
guaranteed by the Constitution, the High Court's jurisdiction is much
wider. It can grant writs not only for the enforcement of fundamental
rights but also for any other purpose.
If any officer/person punished under Army Act moves the High
Court under Article 226 and the case is adjudicated by the High Court,
any of the parties can approach the Supreme Court under Article 136 of
the Constitution which will not amount to entertaining any appeals
from the Award of the Court Martial but would be an appeal from the
judgement of the High Court.
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