Consider the following statements:
1. The power to decide to what extent any of the fundamental right shall be applicable to the members of the armed forces rests with Parliament
2. Members of the armed forces don’t enjoy right to constitutional remedies
Which among the above statements is / are correct?
Parliament is empowered to make a law determining “to what extent any of the right shall, in their application to (a) the members of the Armed forces or (b) the members of the armed forces charged with the maintenance of public order”, be restricted or abrogated so as to ensure the proper discharge of their duties. They need to maintain discipline and that is what this article demands. Now, here is an important question, which needs our attention. Article 32 gives right to constitutional remedies by means of writ petitions. Article 33 blocks some of the fundamental rights. Then are the members of armed forces allowed to file a writ petition in Supreme Court or High court?
The answer is yes. Here, we have to note that Article 136(2) and 227 (4) exclude the appellate jurisdiction of the Supreme Court and the supervisory jurisdiction of the High Court in case of Court Martial. But at the same time, they also don’t exclude the operation of article 32 and 226 (powers of SC and HC to issue writs). This means that the honourable Supreme Court as well as the High Court CAN intervene in the Court martial cases too, provided that there is a substantive fundamental right is excluded by law made under article 33. The Supreme Court CAN intervene if the sentence provided under court martial is disproportionate to the crime. (From Manual Polity-3)
This question is a part of GKToday's Integrated IAS General Studies Module