Not Military Justice but . . . (howsoever high you might be, the law is above you: Supreme Court of India)

The Supreme Court of India has once again ruled that howsoever high one might be, all actions in a democracy are amenable to judicial review.

In a case wherein a Brigadier, despite making it through the promotion process for the rank of Major General, was not finally promoted based upon a decision of a board consisting of top generals, the government had contended that due deference must be shown to the high ranking officers who were a part of the panel. Ruling that rank carries no weight as far as the law is concerned, the Supreme Court has ruled as under:

“19. Another submission of Mr. Balasubramanian is that the Selection Board consists of senior officers of the Army and deference has to be shown to the discretion exercised by them in the matter of promotion. We disagree. Lord Acton said: - "I cannot accept your canon that we are to judge Pope and King unlike other men, with a favourable presumption that they did no wrong. If there is any presumption it is the other way against holders of power, increasing as the power increases”.

20. There is no presumption that a decision taken by persons occupying high posts is valid. All power vested in the authorities has to be discharged in accordance with the principles laid down by the Constitution and the other Statutes or Rules/Regulations governing the field. The judicial scrutiny of a decision does not depend on the rank or position held by the decision maker. The Court is concerned with the legality and validity of the decision and the rank of the decision maker does not make any difference.

21. Judgments of this Court have been cited to contend that officers in the Army are different from the civil servants. The submission made on behalf of the Respondent is that the law laid down in case of Government servants occupying civil posts cannot be applied to the Armed Forces personnel. We are not relying upon any judgment in favour of public servants in Government service for adjudicating the dispute in this case. The only point that is considered by us is regarding the non-empanelment of the Appellant being in accordance with the promotion policy of the Respondent. The non-empanelment of the Appellant for promotion as Major General is contrary to the promotion policy. He is entitled for reconsideration for empanelment by a Review Selection Board strictly in accordance with the promotion policy by keeping in mind the observations in this judgment. The Respondents are directed to complete this exercise within a period of six months from today.”

The full judgement and a report on the same at Live Law, can be accessed here.