JUDGMENT :

SANJAY KISHAN KAUL, J.

The prelude to the Armed Forces Tribunal Act, 2007:

1. A large number of cases relating to service matters of members of the three-armed forces of the Union of India had been pending in Courts for a considerable period of time and, thus, the Central Government engaged in the question of constituting an independent adjudicatory forum for defence personnel. In 1982, the Supreme Court in Lt. Col. Prithi Pal Singh Bedi Etc. vs. Union of India & Others, (1982) 3 SCC 140 had urged the Central Government to take steps to provide for at least one judicial review in service matters, and in 1992 the Estimate Committee of Parliament in their 19th Report desired as much.

2. The then existing system of administration of justice in these armed services provided for the submission of statutory complaints against grievances relating to service matters and pre and post confirmation petitions to various authorities against the findings and sentences of courts-marital. The establishment of an independent Armed Forces Tribunal was, thus, conceived to fortify the trust and confidence amongst the members of the three services. A Bill was introduced to provide for judicial appeal on points of law and facts against verdicts of Court martial, the absence of which had led to adverse comments from this Court. On the Bill ultimately being passed, the Armed Forces Tribunal Act, 2007, (hereinafter referred to as the ‘said Act’) came into being with effect from 15.06.2008 and saw some amendments subsequently.

Legal Conundrum:

3. On the said Act coming into force, various issues arose during its implementation. One such issue which begs consideration before us is whether the order passed by the Armed Forces Tribunal would be amenable to challenge in the writ jurisdiction under Article 226 of the Constitution of India before any High Court. The issue needs consideration in a number of matters before us, and the decision on this proposition would result in certain consequential orders being passed in these different matters. Interestingly, in some of the matters including the lead matter, it appears that the objection to exercise jurisdiction under Article 226 of the Constitution of India before the High Court was not even raised, though that exercise is sought to be assailed before us.

Submissions on behalf of the private parties:

4. Mr. Arvind Datar, learned Senior counsel, and Mr. K. Parameshwar, learned counsel, led the arguments on behalf of the persons who were serving in different armed forces. They strongly contended that there could never be a bar to the exercise of jurisdiction under Article 226 of the Constitution of India by the High Court, albeit, sometimes, the High Court makes its discretion not to exercise its jurisdiction. They relied on a Constitution Bench of seven-Judges of this Court in L. Chandra Kumar v. Union of India & Others, (1997) 3 SCC 261, which unequivocally opined that the power of judicial review under Article 226 is part of the basic structure of the Constitution and all the decisions of a tribunal, whether constituted under Article 323A³[323A. Administrative tribunals.] or 323B⁴[323B. Tribunals for other matters.] of the Constitution, would be subject to the High Court’s writ jurisdiction under Article 226 of the Constitution.

5. The discussion in the case of L. Chandra Kumar⁵[(supra)] referred to the judgment of this Court in the seminal case of Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461 and many other subsequent judgments. It would be useful to extract the discussion in para 62 of L. Chandra Kumar⁷[(supra)] as under:

“62. In Kesvananda Bharati case, a thirteen-Judge Constitution Bench, by a majority of 7:6, held that though, by virtue of Article 368, Parliament is empowered to amend the Constitution, that power cannot be exercised so as to damage the basic features of the Constitution or to destroy its basic structure. The identification of the features which constitute the basic str