1. Challenge to the maintainability of writ petitions under Article 226 of the Constitution against orders passed by the Armed Forces Tribunal under the Armed Forces Tribunal Act, 2007. (Para 1 , 2 , 3 )
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2023 Supreme(SC) 256
SUPREME COURT OF INDIA
SANJAY KISHAN KAUL, ABHAY S. OKA, B.V. NAGARATHNA, JJ.
Union Of India & Ors. – Appellants
Versus
Parashotam Dass – Respondent
Civil Appeal No.447 of 2023, C.A.No.457 of 2023 @ S.LP(C) No. 1788 of 2023, C.A.No.1807 of 2023 @ SLP(C) No. 17320 of 2017, C.A. No. 5327 of 2015, C.A.No.449 of 2023 @ SLP(C) No. 20721 of 2015, C.A.No.448 of 2023 @ SLP(C) No. 20499 of 2015, C.A.No.450 of 2023 @ SLP(C) No. 26617 of 2015, C.A.No.451of 2023 @ SLP(C) No. 26568 of 2015, C.A.No.452 of 2023 @ SLP(C) No. 26620 of 2015, C.A.No.483 of 2023 @ SLP(C) No. 36386 of 2015, C.A.No.454 of 2023 @ SLP(C) No. 28101 of 2016, C.A.No.453 of 2023 @ SLP(C) No. 5111 of 2016, W.P.(C) No. 76 of 2016
Decided on : 21-03-2023
Advocates appeared:
For the parties : Mr. G.S. Gerwal, Sr. Adv. Mr. Hitesh Kumar Sharma, Adv. Mr. Akhileshwar Jha, Adv. Ms. Niharika Dwevedi, Adv. Mr. Ravish Kuamr Gouyal, Adv. Mr. Amit Kuamr Chawla, Adv. Mr. Narendra pal Sharma, Adv. Ms. Sandhya Singh, Adv. Ms. Manju Jetley, AOR Mr. K.Parameshwar, AOR Mr. Navdeep Singh, Adv. Ms. Arti Gupta, Adv. Ms. Kanti, Adv. Mr. Mukesh Kumar Sharma, AOR Mr. Braj Kishore Mishra, AOR Mr. Ankit Mishra, Adv. Mr. Abhishek Yadav, Adv. Mr. K M Nataraj, A.S.G. Mr. Sanjay Jain, A.S.G. Mr. R Balasubramanian, Sr. Adv. Mrs. Sonia Mathur, Adv. Mrs. Seema Bengani, Adv. Mr. Padmesh Mishra, Adv. Mr. Yuvraj Sharma, Adv. Mr. Anandh Venkataramani, Adv. Mrs. Vijayalakshmi Venkataramani, Adv. Mr. Vinayak Mehrotra, Adv. Ms. Mansi Sood, Adv. Mr. Chitvan Singhal, Adv. Ms. Sonali Jain, Adv. Mr. Abhishek Kumar Pandey, Adv. Mr. Raman Yadav, Adv. Mr. Arvind Kumar Sharma, AOR Mr. Mukesh Kumar Maroria, AOR Mr. Shreekant Neelappa Terdal, AOR Mr. Arvind P.Datar, Sr. Adv. Ms. Archana Pathak Dave, AOR Ms. Chitrangada Rastravara, Adv. Mr. Manvendra Singh, Adv. Mr. Dashrath Singh, Adv. Mr. Abhijeet Singh, Adv. Mr. Aditya Pratap Singh, Adv. Ms. Aishwarya Mishra, Adv. Ms. Yasha Goyal, Adv. Mr. navdeep Singh, Adv. Mr. Manvendra Singh, Adv. Mr. Rakesh Dahiya, AOR Mr. Aditya Dahiya, Adv. Mr. Kapil Dahiya, Adv.
For the parties : Mr. G.S. Gerwal, Sr. Adv. Mr. Hitesh Kumar Sharma, Adv. Mr. Akhileshwar Jha, Adv. Ms. Niharika Dwevedi, Adv. Mr. Ravish Kuamr Gouyal, Adv. Mr. Amit Kuamr Chawla, Adv. Mr. Narendra pal Sharma, Adv. Ms. Sandhya Singh, Adv. Ms. Manju Jetley, AOR Mr. K.Parameshwar, AOR Mr. Navdeep Singh, Adv. Ms. Arti Gupta, Adv. Ms. Kanti, Adv. Mr. Mukesh Kumar Sharma, AOR Mr. Braj Kishore Mishra, AOR Mr. Ankit Mishra, Adv. Mr. Abhishek Yadav, Adv. Mr. K M Nataraj, A.S.G. Mr. Sanjay Jain, A.S.G. Mr. R Balasubramanian, Sr. Adv. Mrs. Sonia Mathur, Adv. Mrs. Seema Bengani, Adv. Mr. Padmesh Mishra, Adv. Mr. Yuvraj Sharma, Adv. Mr. Anandh Venkataramani, Adv. Mrs. Vijayalakshmi Venkataramani, Adv. Mr. Vinayak Mehrotra, Adv. Ms. Mansi Sood, Adv. Mr. Chitvan Singhal, Adv. Ms. Sonali Jain, Adv. Mr. Abhishek Kumar Pandey, Adv. Mr. Raman Yadav, Adv. Mr. Arvind Kumar Sharma, AOR Mr. Mukesh Kumar Maroria, AOR Mr. Shreekant Neelappa Terdal, AOR Mr. Arvind P.Datar, Sr. Adv. Ms. Archana Pathak Dave, AOR Ms. Chitrangada Rastravara, Adv. Mr. Manvendra Singh, Adv. Mr. Dashrath Singh, Adv. Mr. Abhijeet Singh, Adv. Mr. Aditya Pratap Singh, Adv. Ms. Aishwarya Mishra, Adv. Ms. Yasha Goyal, Adv. Mr. navdeep Singh, Adv. Mr. Manvendra Singh, Adv. Mr. Rakesh Dahiya, AOR Mr. Aditya Dahiya, Adv. Mr. Kapil Dahiya, Adv.
Important Points
The Supreme Court held that orders of the Armed Forces Tribunal are amenable to challenge under the writ jurisdiction of High Courts under Article 226 of the Constitution. It clarified that judicial review is part of the basic structure and is not barred, overruling the decision in Major General Shri Kant Sharma.
Subject
Civil Law - Administrative Law
Act Referred
Headnote
Armed Forces Tribunal Act - Jurisdiction, Powers and Authority in Service Matters - Section 14, Section 30, Section 31 Summary:
Fact of the Case:
The case involved the consideration of whether orders passed by the Armed Forces Tribunal could be challenged in the writ jurisdiction under Article 226 of the Constitution of India before any High Court.Finding of the Court:
The court held that there is no per se restriction on the exercise of power under Article 226 of the Constitution by the High Court. It concluded that the judgment in Major General Shri Kant Sharma & Anr. case does not lay down the correct law and is in conflict with judgments of Constitution Benches rendered prior and later to it.Issues:
The main issue was whether orders 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.Ratio Decidendi:
The court emphasized that there is no per se restriction on the exercise of power under Article 226 of the Constitution by the High Court. It also highlighted that even in respect of courts-martial, the High Court could grant appropriate relief if proceedings resulted in denial of fundamental rights or suffered from a jurisdictional error or error of law apparent on record.Final Decision:
The court remanded specific cases to respective High Courts for a decision on merits and disposed off other appeals and writ petition accordingly.
Judgement Key Points
What is the applicability of Article 226 writ jurisdiction to challenge Armed Forces Tribunal orders?
What is the scope and limit of High Court judicial review over Armed Forces Tribunal decisions under Article 226 and 227?
What is the interplay between Sections 30-31 of the Armed Forces Tribunal Act and the right to appeal to the Supreme Court?
Legal Category Hierarchy
- constitutional law
- administrative law
- service law
Table of Contents
2. Whether Article 226 jurisdiction is barred for Armed Forces Tribunal orders versus whether such jurisdiction should be restricted in disciplinary, security, or pension matters. (Para 4 , 6 , 7 , 9 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 19 , 20 , 21 , 22 , 23 )
3. Judicial review under Article 226 is part of the basic structure; Article 227(4) restricts superintendence but not judicial review; AFT orders are subject to High Court scrutiny. (Para 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 )
4. Orders of the Armed Forces Tribunal are amenable to judicial review under Article 226 of the Constitution, as this power forms part of the basic structure. (Para 32 )
5. Judgment in Major General Shri Kant Sharma overruled; matters remanded to respective High Courts for decision on merits under Article 226. (Para 33 , 34 , 35 )
6. Are orders passed by the Armed Forces Tribunal subject to the writ jurisdiction of High Courts under Article 226?
Yes. The power of judicial review under Article 226 is part of the basic structure of the Constitution. Decisions of tribunals, including the Armed Forces Tribunal, are subject to this jurisdiction and cannot be barred by statute. (Para 4 , 25 , 26 , 32 )
7. Does the restriction in Article 227(4) regarding armed forces tribunals bar judicial review under Article 226?
No. Article 227(4) only limits the power of administrative superintendence by High Courts over armed forces tribunals; it does not inhibit the power of judicial review under Article 226. (Para 9 , 10 , 15 , 26 )
8. Under what circumstances can a High Court exercise jurisdiction under Article 226 regarding courts-martial or AFT proceedings?
High Courts can grant relief if proceedings result in the denial of fundamental rights under Part III of the Constitution, suffer from a jurisdictional error, or contain an error of law apparent on the face of the record. (Para 12 , 29 , 30 )
9. Is the appeal mechanism under Sections 30 and 31 of the Armed Forces Tribunal Act, 2007, restrictive?
Yes. Appeals to the Supreme Court generally require a certification that a point of law of general public importance is involved, which may leave personal service matters without an alternative remedy. (Para 6 , 13 , 18 , 27 )
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 s
