Major jurisdictional issue pending before Supreme Court of India

An important issue has been raised in the Supreme Court of India: can judicial review be sought in the High Courts following a ruling by the Armed Forces Tribunal, or must the case go directly from the AFT to the Supreme Court? The government argued last week that the High Courts no longer have a role, according to this article. A two-judge bench took the case under advisement on February 19. Depending on the outcome, this could either raise the stature of the AFT (and lower the workload of the High Courts) or relegate it to second-class status. The Economic Times reports:

The defence ministry told the apex court that the process should be a three-tier one — court martial, AFT, Supreme Court. Adding high courts to it makes the process longer, the ministry feels.

But the high courts of Kerala, Punjab and Haryana and Delhi have ruled that AFT is only a statutory body. Its decisions therefore will be subject to scrutiny of high courts, which are constitutional.

One thing seems clear: judicial review of military matters takes far longer than it should in India, as previous posts have noted.

As a comparative law matter, courts-martial in the United States may have as many as four stages: court-martial > service court of criminal appeals > U.S. Court of Appeals for the Armed Forces > and Supreme Court of the United States. After that, there is the possibility of collateral review by habeas corpus or under the Tucker Act or general federal question jurisdiction, followed once again by appellate review by a court of appeals and the Supreme Court, but the barriers to success on collateral review are daunting. The government does not provide free counsel for collateral attacks on courts-martial.