Tuesday, January 6, 2015

Another decision on double jeopardy in the Armed Forces, this time by the Supreme Court of India

In Union of India vs Purushottam, pronounced yesterday, the Supreme Court of India has dealt with the situation as to whether administrative action after a Summary Court Martial would amount to double jeopardy if the said Summary Court Martial had been set aside by military authorities on technical grounds. While replying in the negative, interestingly in the instant case the Apex Court has also ruled that there was no requirement of setting aside the Summary Court Martial on technical grounds and that it had also not been done by an authority competent to do so.

In the long decision which takes note of the law on double jeopardy of various nations, the Court also makes the following observations:

“...The Show Cause Notice impugned before the High Court was predicated on Rule 13 by obviously circuitously taking recourse to the residuary clause 13(3)(III)(V) of the relevant Table, We have consciously used the word ‘circuitously’ for the reason that the Appellants could have resorted to Section 20 of the Army Act. We may add a word of caution here– the power to do a particular act must be located in the statute, and if the rules framed under the statute ordain an action not contemplated by the statute, it would suffer from the vice of excessive delegation and would on this platform be held ultra vires. Rules are framed for dealing in detail with myriad situations that may manifest themselves, for the guidance of the concerned Authority. Rules must, therefore, be interpreted in a manner which would repose them in harmony with the parent statute. Based on our experience, it seems to us that the Army Authorities are often consumed by the Army Rules without fully comprehending the scope of the Army Act itself...”

The full text of the decision can be accessed by clicking here.

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