Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Del) 192

IN THE HIGH COURT OF DELHI AT NEW DELHI
Manmohan, Navin Chawla, JJ.
Wing Commander Shyam Naithani & Ors. - Appellants
Versus
Union Of India & Ors. - Respondents
W.P.(C) 6483 of 2021 & CM Appl.20367 of 2021, W.P.(C) 5273 of 2021 & CM Appls. 16227 of 2021 and 18656 of 2021, W.P.(C) 1720 of 2021 & CM Appls. 4963-4964 of 2021 and W.P.(C) 8171 of 2020
Decided On : 15-03-2022

Advocates Appeared:
Mr. Ankur Chhibber, Advocate with Mr. H.S. Tiwari, Mr. Anshuman Mehrotra, Mr. Harsh Dhankar, Mr. Nikunj Arora, Advocates, for the Appellant; Mr. Vikram Jetly, Advocate. Mr. Jatin Puniyani, Advocate, for the Respondent.

The power of judicial review under Articles 226 and 227 of the Constitution is a basic and inalienable human right, forming part of the basic structure of the Constitution, and cannot be taken away by any legislation or statute.

Headnote:
Judicial Review - Power of High Courts under Articles 226 and 227 - Armed Forces Tribunal Act, 2007 - [JUDICIAL REVIEW] - [CONSTITUTIONAL JURISDICTION] - [ARTICLE 226, ARTICLE 227, ARMED FORCES TRIBUNAL ACT, 2007, L. CHANDRA KUMAR V. UNION OF INDIA, ROJER MATHEW V. SOUTH INDIAN BANK LTD., BALKRISHNA RAM V. UNION OF INDIA] - The court discussed the power of judicial review vested in the High Court under Article 226 and Article 227 of the Constitution, and the effect of the judgment passed by the Supreme Court in Union of India and Ors. vs. Maj. Gen. Shri Kant Sharma and Anr. (2015) 6 SCC 773. The court emphasized that the power of judicial review is a basic and inalienable human right, forming part of the basic structure of the Constitution, and cannot be taken away by any legislation or statute. The court also reinstated the right to challenge verdicts of the Armed Forces Tribunal in the High Courts, emphasizing that access to justice is a fundamental right of the citizens and the power of judicial review vests in the High Courts. The court clarified that the jurisdiction of a writ Court under Article 226 of the Constitution is vastly different and distinct from that of an appellate Court, and that the writ jurisdiction of High Courts cannot be exercised as an appeal in disguise.
Fact of the Case:

The court considered the issue of whether the power of Judicial Review, a basic feature of the Constitution of India conferred upon the High Courts under Articles 226 and 227, has been taken away totally in view of the judgment passed by the Supreme Court in Union of India and Ors. vs. Maj. Gen. Shri Kant Sharma and Anr. The petitioners argued that a writ petition is maintainable against the final order passed by Armed Forces Tribunal, while the respondents contended that the said judgment constitutes a binding precedent and that the High Courts should not entertain writ petitions against judgments passed by the Armed Forces Tribunal.
Finding of the Court:

The court found that the power of judicial review under Articles 226 and 227 of the Constitution vests with the High Court even with regard to judgments and orders passed by the Armed Forces Tribunal and this power is a part of the basic structure of the Constitution. The court also reinstated the right to challenge verdicts of the Armed Forces Tribunal in the High Courts, emphasizing that access to justice is a fundamental right of the citizens and the power of judicial review vests in the High Courts.
Issues: The issues involved in the case included the preservation of the power of judicial review of the High Courts and the Supreme Court, the effect of the judgment in Union of India and Ors. vs. Maj. Gen. Shri Kant Sharma, and the right to challenge verdicts of the Armed Forces Tribunal in the High Courts.
Ratio Decidendi: The court held that the power of judicial review is a basic and inalienable human right, forming part of the basic structure of the Constitution, and cannot be taken away by any legislation or statute. The court also reinstated the right to challenge verdicts of the Armed Forces Tribunal in the High Courts, emphasizing that access to justice is a fundamental right of the citizens and the power of judicial review vests in the High Courts.
Final Decision: The court rejected the preliminary objection raised by the Union of India with regard to the maintainability of the present writ petitions and listed the matters before the roster bench for consideration in accordance with the parameters laid down.

JUDGMENT

Manmohan, J. - The issue that arises for consideration in the present batch of matters is whether the power of Judicial Review, a basic feature of the Constitution of India conferred upon the High Courts under Articles 226 and 227 has been taken away totally in view of the judgment passed by the Supreme Court in Union of India and Ors. vs. Maj. Gen. Shri Kant Sharma and Anr., (2015) 6 SCC 773 thereby denying litigants the right to approach High Court in writ jurisdiction against the judgment and orders passed by Armed Forces Tribunal.

2. While learned counsel for the petitioners stated that a coordinate Division Bench of this Court in Brijlal Kumar & Ors. vs. Union of India & Ors., W.P.(C) 98/2020 decided on 24th November, 2020 has held that a writ petition is maintainable against the final order passed by Armed Forces Tribunal, learned counsel for the Respondents stated that the said judgment is per incuriam as it is contrary to the judgment passed by the Apex Court in Union of India and Ors. vs. Maj. Gen. Shri Kant Sharma and Anr.(supra) and the said judgment has not been set aside/overruled till date.

PRELIMINARY OBJECTION ON BEHALF OF THE RESPONDENTS

3. Mr.Harish Vaidyanathan Shankaras well as Mr. Anurag Ahluwalia, learned counsel for Union of India while relying upon Union of India and Ors. vs. Maj. Gen. Shri Kant Sharma and Anr (supra) submitted that the Supreme Court has specifically held that High Courts should not entertain writ petitions against judgments passed by Armed Forces Tribunal as the parties have an alternative effective remedy of filing an appeal before the Supreme Court under Armed Forces Tribunal Act, 2007. In support of their submission, they relied upon the following portion of the said judgment, wherein it has been held as under: -

"....36. The aforesaid decisions rendered by this Court can be summarised as follows:

(i) The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including the Armed Forces Tribunal Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India. (Refer: L. Chandra Kumar [L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 : 1997 SCC (L&S) 577] and S.N. Mukherjee [(1990) 4 SCC 594 : 1990 SCC (Cri) 669].) (ii) The jurisdiction of the High Court under Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by the provisions of the Acts and would exercise their jurisdiction consistent with the provisions of the Act. (Refer: Mafatlal Industries Ltd. [(1997) 5 SCC 536] ) (iii) When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. (Refer: Nivedita Sharma [(2011)14 SCC 337: (2012) 4 SCC (Civ) 947].) (iv) The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance. (Refer: Nivedita Sharma [(2011) 14 SCC 337 : (2012) 4 SCC (Civ) 947] .) xxxx xxxx xxxx Likelihood of anomalous situation 42. If the High Court entertains a petition under Article 226 of the Constitution of India against an order passed by the Armed Forces Tribunal under Section 14 or Section 15 of the Act bypassing the machinery of statute i.e. Sections 30 and 31 of the Act, there is likelihood of anomalous situation for the aggrieved person in praying for relief from this Court." (emphasis supplied)

4. Learned counsel for the respondent-Union of India pointed out that though the Supreme Court in Union of India vs. Thomas Vaidyan, Civil Appeal No.5327/2015, vide order dated 16th November, 2015, has referred the case of Union of India and Ors. v