Concurrent Jurisdiction Under Air Force Act, 1950: Primacy Of Military Authorities And The Temporal Window For Discretion
- IJLLR Journal
- Jan 15
- 2 min read
Concurrent Jurisdiction Under Air Force Act, 1950: Primacy Of Military Authorities And The Temporal Window For Discretion – A Comparative Analysis Of Constitutional Bench Judgment Of Supreme Court In Som Datt Datta (1969), Madras High Court (2023), And J&K High Court (2024)
Sivaraman Siva Elamurugu (Research Scholar, School of Law, Pondicherry University)
Dr. Gurminder Kaur (Assistant Professor and Head (i/c), School of Law, Pondicherry University)
"In a constitutional Democracy, military justice must remain a sword of discipline, and not a shield from the Rule of Law"
ABSTRACT
This article analyzes three landmark judgments spanning 55 years to clarify one of Indian military law's most contentious issues: When can military authorities invoke their "primacy" or "first option" to assume jurisdiction over a crime allegedly committed by service personnel. The key finding is that Military authorities' substantive primacy (their right to choose court- martial over criminal court) is real and binding, but their temporal primacy (their ability to exercise this right at any time) is limited to a defined window: post-investigation (charge-sheet filed) but pre-cognizance (Magistrate's acceptance of the case). The three landmark judgments chart this evolution, Som Datt Datta v. Union of India (AIR 1969 SC 414, Constitution Bench), which affirms military priority, with the timing implicit. The second, State Rep. by Inspector of Police v. Commandant AFAC (Madras HC, 2023), mandates that the military can assume jurisdiction early (pre-charge-sheet) if a Court of Inquiry is initiated, and the third, P.K. Sehrawat v. Union Territory of J&K (J&K HC, 2024), rejects early assumption; mandates explicit written Section 124 decision post-charge-sheet only. Critical Incongruencies have been identified, Divergence between Madras HC (2023) and J&K HC (2024) on timing, Victim victimization through parallel inquiries (POSH Internal Committee Inquiry + police investigation + Court of Inquiry), Procedural disparities between court-martial and criminal trial (bail, counsel, appeals). Primacy of Art 33 (Restrictions on Fundamental Rights for Military personnel) in comparison to rights envisaged under Article 21 & Article 22 of the Constitution of India.
Keywords: Concurrent Jurisdiction, Air Force Act Section 124, Som Datt Datta Doctrine, Police Investigation, Timing of Military Discretion, Victim Protection, Constitutional Safeguards.
