Report No. 169
How the Objectives can be Attained
5.1. Conclusions regarding appeals against the final orders passed by the courts-martial.-
The Law Commission is of the opinion that in order to achieve the objectives discussed in the Chapter I. It is necessary to provide an appropriate appellate forum to enter in appeals against the final orders passed by the courts martial. As explained hereinabove, while the Army and Air Force Acts provide for confirmation of the sentence or finding made by the courts martial (except the summary courts martial), the Navy Act does not provide for any such confirmation.
In this connection, we are also of the opinion that it is not necessary to compel every aggrieved person to necessarily adopt the procedure prescribed by sub-section (2) of section 164 of the Army Act or for that matter corresponding provision of the Air Force Act, 1950. An appeal should be available against the final order (sentence or finding) of court martial. Indeed in view of the Tribunal proposed herein, sub-section (2) of the section 164 and the corresponding provision in the Air Force Act may as well be deleted.. Even the provisions relating to judicial review by Judge Advocate-General in the Navy Act can also be deleted.
5.1.1. The appellate tribunal, in our opinion, should not be a totally civilian appellate tribunal as has been provided in the United Kingdom since it may not be conducive to the discipline of the Armed Forces. We think it more appropriate to create a tribunal headed by a civilian judge whose other members shall be drawn from the retired members of the Armed Forces, and, from among those who have acted as or worked in the Judge Advocate-General's department. To be precise, it shall be a three-member tribunal consisting of-
(1) a retired Judge of the Supreme Court or a retired Chief Justice of High Court who shall be the Chairman for a term of 4 years,
(2) a retired officer of the Army of the rank of Major-General or above, or a retired officer of the Air Force of the rank of Air Vice Marshal or a retired officer of the Navy of the rank of Rear Admiral, and
(3) a retired Judge Advocate-General of the Army/Air Force/Navy.
The term of the President and members shall be four years. However, if an appeal is preferred by a person holding a rank higher than the rank held by the person appointed as member at the time of his retirement from category 2 above, the President of the Tribunal will write to the Central Government to nominate a retired officer for the case as a member of the Tribunal, who shall be of a rank not lower than that of the person who has preferred an appeal, in place of the member from category 2.
5.1.2. The quorum for the Tribunal shall be two, but no decision shall be rendered by the tribunal except with the participation of the President.
5.1.3. The Tribunal shall be common to Army, Navy and Air Force. The seat of the Tribunal shall be Delhi, but it shall be open to the Tribunal to hold its sittings at such other places as it may decide in the interest of convenience of all concerned.
5.1.4. From the decision of the Tribunal, a direct statutory appeal shall lie to the Supreme Court. This is not something new since such direct appeals are already provided by certain other enactments. For example, section 130E of the Customs Act, and section 35L of the Central Excises and Salt Act, 1944, or for that matter section 23 of the Consumer Protection Act, 1986. In view of proposed statutory appeal to the Supreme Court, it is expected that no High Court will entertain a writ petition under Article 226 of the Constitution of India against the orders of the appellate tribunal.
If such an appeal is provided, it would be appropriate to delete clause (2) of Article 136 of the Constitution which provides that the power to grant special leave to appeal conferred upon the Supreme Court by clause (1) of the said Article shall not apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.