Tuesday, April 7, 2015

Navdeep Singh op-ed on Indian judicial review of military matters

Maj (ret) Navdeep Singh
Global Military Justice Reform contributor Maj (ret) Navdeep Singh has written a powerful op-ed for The Indian Express. In it, he argues against limiting judicial review of military cases to the Armed Forces Tribunal and then to the Supreme Court of India only if there is a question of "general public importance." In his view, multilevel appellate review is essential, and the High Courts must continue to have the power to review AFT decisions by writ.

An interesting aspect of the controversy is that the constraint recently announced by the Supreme Court may at times seriously inconvenience the government. Thus, in a big officer promotion case the government lost the other day, the AFT refused to certify the case for review by the Supreme Court. The government now has nowhere to turn, since as it succeeded in persuading a panel of the Supreme Court that the High Court's doors are closed. It is therefore hoist with its own petard.

This is reminiscent of what happened in the United States when the then U.S. Court of Military Appeals in United States v. Matthews, 16 M.J. 354 (C.M.A. 1983), invalidated (for a time) the military death penalty, and there was no way for the government to get the issue before the Supreme Court of the United States. The Defense Department prepared a legislative proposal to expand the Supreme Court's certiorari jurisdiction to include direct appellate review of court-martial cases -- an expansion that has lopsidedly benefited the government rather than defendants.

Ironically, therefore, the Indian MoD may wish to join forces -- miracles can happen -- with private litigants in military cases to (1) relax the standard for Supreme Court review of AFT decisions and (2) restore High Court writ review of AFT decisions.

No comments:

Post a Comment

Comments are subject to moderation and must be submitted under your real name. Anonymous comments will not be posted (even though the form seems to permit them).