The main legal point established in the judgment is that while writ petitions under Article 226 are maintainable against orders of the AFT, petitions under Article 227 cannot be filed before the court, in view of the express bar contained in Article 227(4) of the Constitution.

ORDER :

A.K. Jayasankaran Nambiar, J.

1. In all these cases, a preliminary issue as regards maintainability arises for consideration, and hence, they are taken up together for hearing on the said issue.

2. The O.P.(AFT)'s have been filed impugning orders passed by the Armed Forces Tribunal [AFT] and by invoking the jurisdiction of this Court under Article 227 of the Constitution of India. The writ petition, on the other hand, has been filed impugning an order of the AFT by invoking the jurisdiction of this Court under Article 226 of the Constitution. The preliminary issue that arises for consideration is whether a person aggrieved by an order passed by the AFT can approach this Court by invoking its jurisdiction either under Article 226 or Article 227 of the Constitution of India.

3. The following judgments of the Supreme Court were cited before us by the learned counsel appearing for the parties: Sangram Singh v. Election Tribunal, Kotah and Another, (1955) 2 SCR 1, Union of India and Others v. Major General Shri Kant Sharma and Another – (2015) 6 SCC 773, L. Chandra Kumar v. Union of India and Others – (1997) 3 SCC 261, Balkrishna Ram v. Union of India and Others – (2020) 2 SCC 442, Rojer Mathew v. South Indian Bank Ltd. - (2020) 6 SCC 1, Shalini Shyam Shetty and another v. Rajendra Shankar Patil – (2010) 8 SCC 329 and interim order dated 16.11.2015 in Civil Appeal No.5327 of 2015 – [Union of India and Others v. Thomas Vaidyan M.].

4. On a consideration of the above judgments, we find that the following principles can be culled out from them;

(i) The jurisdiction which Articles 226 and 136 of the Constitution confer entitles the High Courts and the Supreme Court to examine the decisions of all Tribunals to see whether they have acted illegally. The said jurisdiction cannot be taken away by a legislative device that purports to confer power on a Tribunal to act illegally by stipulating that its illegal acts shall become legal the moment the Tribunal chooses to say they are legal. The legality of an act or conclusion is something that exists outside and apart from the decision of an inferior Tribunal. It is a part of the law of the land which cannot be finally determined or altered by any Tribunal of limited jurisdiction. The High Courts and the Supreme Court alone can determine what the law of the land is vis-a-vis all other Courts and Tribunals and they alone can pronounce with authority and finality on what is legal and what is not. All that an inferior Tribunal can do is to reach a tentative conclusion which is subject to review under Article 226 and 136 of the Constitution. [See Sangram Singh (supra)]

(ii) In L. Chandra Kumar (supra), a seven Judges' Bench of the Supreme Court held that judicial review is a part of the basic structure of the Constitution and that the power of judicial review of the High Courts and the Supreme Court cannot be taken away. This position was reiterated in Rojer Mathew (supra). In the case of the AFT, this position is also made clear under Section 14 of the Armed Forces Tribunal's Act itself. In the light of the judgments in L. Chandra Kumar (supra) and Rojer Mathew (supra) as also the specific provisions in the Armed Forces Tribunal Act, we are perhaps justified in viewing the finding in Major General Shri Kant Sharma (supra) that holds that a writ petition under Article 226 would not lie against an order of the AFT, as impliedly overruled. This is especially so because, we find that the correctness of Major General Shri Kant Sharma (supra) was doubted by the Supreme Court in Thomas Vaidyan (supra) and the issue referred to a bench of three Judges and it was while so that the Constitution bench pronounced on the issue in Rojer Mathew (supra).

(iii) Although the decisions in L. Chandra Kumar (supra) and Rojer Mathew (supra) also hold that that power vested with the High Court to exercise judicial superintendence over decisions of all Courts and Tribunals within their respective jurisdictions is also p