Armed Forces Tribunal

Supreme Court: While exercising its civil appellate jurisdiction, the full bench of Sanjay Kishan Kaul*, Abhay S. Oka and B.V. Nagarathna J.J, in a batch of petitions, held that the High Courts have jurisdiction to adjudicate upon the order passed by the Armed Forces Tribunal and overruled its decision in Union of India v. Major General Shri Kant Sharma, (2015) 6 SCC 773, which had barred the exercise of jurisdiction under Article 226 of the Constitution of India in cases assailing orders passed by the Armed Forces Tribunal.

In the matter at hand, the issue for consideration before the Bench was to determine whether the order passed by the Armed Forces Tribunal would be amenable to challenge under Section 30 of the Armed Forces Tribunal Act, 2007 (‘The Act’) in the writ jurisdiction under Article 226 of the Constitution of India before any High Court with the leave of the Tribunal under Section 31 of the Act.

The Court stated that the Armed Forces have their own rules and procedures, and if there was a proper exercise of jurisdiction in accordance with the norms of the Armed Forces, the High Court or Supreme Court have to be circumspect in interfering with the same, keeping in mind the significance of the role performed by the Armed Forces.

The Court recognised the fact that the Armed Forced Tribunal requires different form of jurisprudential principle and stated that “We are conscious of the importance of the role performed by the Armed Forces and the discipline level required by these services. Thus, often many jurisprudential principles of other tribunals cannot be imported into the decisions of the Armed Forces Tribunal.”

The Court disagreed with the observations made in the case of Major General Shri Kant Sharma (Supra) which had sought to put an embargo on the exercise of jurisdiction under Article 226 of the Constitution, diluting a very significant provision of the Constitution which forms the part of the basic structure.

“The principles of basic structure have withstood the test of time and are emphasized in many judicial pronouncements as an ultimate test…the self-restraint of the High Court under Article 226 of the Constitution is distinct from putting an embargo on the High Court…while judicially reviewing a decision arising from an order of the Tribunal.”

The Court opined that the decision in Major General Shri Kant Sharma (Supra) does not lay down the correct law and was in conflict with multiple Supreme Court and Constitution Bench matters making it abundantly clear that there was no per se restriction on the exercise of power under Article 226 of the Constitution by the High Courts.

The bench referred to the decision of a seven Judges Bench of Supreme Court in the case of L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 which had clearly put the matter to rest by upholding the principles of ‘Tribunalisation’ under Article 323A and Article 323-B of the Constitution and was of the view that the decision of Tribunals would be subjected to the jurisdiction of the High Courts under Article 226 of the Constitution.

The Court thus, reiterated and clarified that the power of the High Court under Article 226 of the Constitution was not inhibited, and superintendence and control under Article 227 of the Constitution which were somewhat distinct from the powers of judicial review.

The Bench opined that to deny the High Court to correct any error which the Armed Forced Tribunal may fall into would be against the constitutional scheme.

The Bench relied upon the constitution Bench judgment in the case of S.N. Mukherjee v. Union of India, (1990) 4 SCC 594 which had enunciated the fact that even in respect to Court Martial, the High Court could grant appropriate relief in a certain scenario as envisaged therein.

“If there is a denial of a fundamental right under Part III of the Constitution or there is a jurisdictional error or error apparent on the face of the record, the High Court can exercise its jurisdiction.”

The Court observed that there appears to be a misconception that the High Courts would re-appreciate the evidence, thereby making it into a second appeal but the Bench clarified that the High Courts were quite conscious of the parameters within which the jurisdiction was to be exercised.

With the above observation, the Bench remanded back those matters which were disposed of as not maintainable in view of the judgment in Major General Shri Kant Sharma (Supra) to the respective High Courts for adjudication on merits and another case was directed to be considered by a two Judges Bench of Supreme Court, on merits.

[Union of India v Parashotam Dass, 2023 SCC OnLine SC 314, decided on 21-03-2023]

Judgment authored by Justice Sanjay Kishan Kaul

Justice Sanjay Kishan Kaul — A torch bearer of Freedom of Speech and Expression

Advocates who appeared in this case:

Senior Advocate G.S. Gerwal, Advocate Hitesh Kumar Sharma, Advocate Akhileshwar Jha, Advocate Niharika Dwevedi, Advocate Ravish Kuamr Gouyal, Advocate Amit Kuamr Chawla, Advocate Narendra Pal Sharma, Advocate Sandhya Singh, Advocate on Record Manju Jetley, Advocate on Record K. Parameshwar, Advocate Navdeep Singh, Advocate Arti Gupta, Advocate Kanti, Advocate on Record Mukesh Kumar Sharma, Advocate on Record Braj Kishore Mishra, Advocate Ankit Mishra, Advocate Abhishek Yadav, Additional Solicitor General K M Nataraj, Additional Solicitor General Sanjay Jain, Senior Advocate R Balasubramanian, Advocate Mrs. Sonia Mathur, Advocate Seema Bengani, Advocate Padmesh Mishra, Advocate Yuvraj Sharma, Advocate Anandh Venkataramani, Advocate Vijayalakshmi Venkataramani, Advocate Vinayak Mehrotra, Advocate Mansi Sood, Advocate Chitvan Singhal, Advocate Sonali Jain, Advocate Abhishek Kumar Pandey, Advocate Raman Yadav, Advocate on Record Arvind Kumar Sharma, Advocate on Record Mukesh Kumar Maroria, Advocate on Record Shreekant Neelappa Terdal, Senior Advocate Arvind P.Datar, Advocate on Record Archana Pathak Dave, Advocate Chitrangada Rastravara, Advocate Manvendra Singh, Advocate Dashrath Singh, Advocate Abhijeet Singh, Advocate Aditya Pratap Singh, Advocate Aishwarya Mishra, Advocate Yasha Goyal, Advocate Navdeep Singh, Advocate Manvendra Singh, Advocate on Record Rakesh Dahiya, Advocate Aditya Dahiya, Advocate Kapil Dahiya.

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