SUBHASH CHANDRA SARKAR Vs. UNION OF INDIA

JUDGEMENT

(1.) IN this Writ Petition, which is described as a petition under Articles 226 and 227 of the Constitution of India, two questions are mainly involved. So far as Article 227 of the Constitution of India is concerned, it will be out of the picture. Subclause (4) of Article 227 of the Constitution specifically excludes courts martial from the operation of the Article. It is as follows :--"article 227 (4 ).-- Nothing in this article shall be deemed to confer on a high Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces. " therefore, court-martial can in no sense be considered to be a Tribunal subordinate to the High Court. But the said bar does not find place in Article 226 of the Constitution of India. Therefore, although courts-martial may not be considered to be Tribunals subordinate to the High Court or for the purposes of article 136 of the Constitution of India subordinate to the Supreme Court, they will be amenable to the prerogative jurisdiction of the High Court under Article 226 of the Constitution of India and to the jurisdiction of the Supreme Court under Article 32 of the Constitution of India in the matter of exercise of fundamental rights.

(2.) THE instant questions came up for consideration before Sankaran, J. , in Vishnukrishnan namboodiri v. K. N. Kripal, AIR 1952 Trav-Co 7, wherein the learned judge held that ordinarily the Civil Court would have no power to interfere with the administration of military law by the properly constituted Tribunals acting within their jurisdiction. Therefore, the matters which are placed within the jurisdiction of military Tribunals or authorities constituted under the Military law must be determined by such authorities themselves and their decisions cannot be reviewed or set aside by Civil Courts. This principle of the common law has been embodied in Clause (4) of Article 227 of the Constitution of India which deals with the High court's power of superintendence over all Courts and Tribunals within its jurisdiction. However, the general power conferred on the High Court under Article 226 of the Constitution has to be construed subject to the limitation imposed by clause (4) of Article 227. It cannot, however, be said that the High Court has no jurisdiction to relieve against unauthorised or illegal acts of military authorities affecting the fundamental rights of persons in military service. The learned Judge relied on the English cases of R. v. Army Council Ex. P. Ravensdroft, (1917) 2 KB 504, and Heddon v. Evans, (1919) 35 TLR 642. In this connection I might observe that the limitation for the High Court to exerciss prerogative powers under Article 226 of the Constitution would be as laid down by Lord Esher, M. R. and as approved by their Lordships of the Supreme Court in Ebrahim Aboobakar v. Custodian General of Evacuee Property, AIR 1952 SC 319, to the following effect :-

(3.) A Division Bench of the Orissa High Court, presided over by Barman, C. J. , and a. Misra, J. , in Soubhagya Chandra v. Union of India, AIR 1969 Orissa 169 thought it unnecessary to decide the question of jurisdiction of the High Court under Article 226 of the Constitution of India so as to interfere with the decision of a Summary court-Martial on the ground that the Summary Court-Martial had complied with the principles of natural justice and that the petitioner had no case on merits whatsoever. For the reason, the question of jurisdiction of the High Court for exercising prerogative powers was not at all decided.