By: Andolan Sarkar
The genesis of the Armed Forces Tribunal was caused by the observations made by the Supreme Court (herein after ‘SC’) in Lt. Col. Prithi Pal Singh Bedi v. Union of India & Others, wherein the court noted that the punishments awarded to service persons by the Armed Forces were not proportionate and excessively harsh. The court suggested a review mechanism by the Armed Forces Tribunal. Consequently, the Armed Forces Tribunal Act was formulated in 2007. The Armed Forces Tribunal performed the function of a specialized tribunal catering to cases exclusively arising from the Armed Forces. The special nature of the Armed Forces Tribunal necessitated a question regarding the jurisdiction and extent of interference that can be exercised by the High Courts (herein after ‘HC’) under Article 226 of the Constitution since Article 227(4) takes away the superintendence of the HC vis-à-vis the Armed Forces Tribunal. On the other hand, Sections 30 and 31 of the Armed Forces Tribunal Act, 2007 (hereinafter ‘the act‘) allows an aggrieved person to prefer an appeal only to the SC, whereas Article 136(2) of the Constitution restricts the SC to entertain any matter related to the Armed Forces. In such a scenario where in the statute and Constitution prohibits one from approaching the HC or SC, an aggrieved member of the Armed Forces will be rendered remedial if they are not permitted to challenge an order of the Armed Forces Tribunal and appeal before an appellate court. This article will attempt to resolve the anomaly by analyzing the scope of an appeal before the HC under Article 226 against an order of the Armed Forces Tribunal. The article will argue that the HC’s exercise of judicial review is a part of the basic structure of the Constitution and any statutory restriction on Article 226 dehors the constitutional scheme. Since Article 226 provides a mechanism to approach the court to enforce and protect one’s intrinsic rights, judicial review under Article 226 will take superintendence over any other subject matter of law. The judiciary always has the liberty to exercise its discretion with caution and entertain matters emanating from the Armed Forces Tribunal on limited grounds, but the self-restraint exercisable by the HC cannot be construed as a statutory or legislative embargo imposed on Article 226.
Exercise of Judicial Review over a Tribunal’s Decision: A Part of the Basic Structure
The doctrine of basic structure was established by a thirteen-judge bench in the seminal case of Kesavananda Bharati v. State of Kerala. The judgment acknowledged that the Indian constitutional scheme included certain basic covenants, whose existence is imperative and cannot be obliterated by an Act of Parliament. It was Justice HR Khanna who specifically earmarked judicial review as a basic tenet of the Constitution, and further observed that the role of the judiciary is to decide the constitutional vires of any law enacted by the Parliament and safeguard the ostensible contravention of fundamental rights caused by the legislature.
A decision rendered by a Tribunal formulated under Article 323A, or 323B of the Constitution, cannot act as an exception to the judicial review enforceable by the HC and SC under Articles 226 and 32 of the Constitution, respectively. The operation of judicial review is not limited to the review of legislative actions. It was observed by a seven-judge bench in L.Chandra Kumar v. Union of India & Others that the HC and SC are also responsible for reviewing and overseeing decisions rendered by the district judiciary and other tribunals. The judicial hierarchy envisions an appellate mechanism for grievance redressal that enables the aggrieved to question the correctness of a judgment before an appropriate and superior forum. The HC and SC, as Constitutional courts, have been exclusively vested with the writ jurisdiction under Articles 226 and 32, respectively. Therefore, any contravention of a fundamental right allows the aggrieved to approach the HC and SC to challenge the concerned decision of a subordinate court, Tribunal, or a legislative or administrative action. The writ jurisdiction of the HC is an enclosing provision described by Dr. BR Ambedkar as the soul and heart of the Constitution.
in L Chandra Kumar, the SC held that although the parent statute may allow for an appeal by way of a special leave petition under Article 136 directly to the SC, such a remedy will not be judicially desirable as the SC will then be compelled to act as the first appellate court catering to all and every trivial question of law and fact arising out of a tribunal’s decision. The court further observed that the HC as a Constitutional court is vested with powers of judicial review exercisable under its writ jurisdiction and will have judicial superintendence over tribunals under Articles 226 and 227. The rationale of the SC which allows judicial superintendence to HCs recognize the inviolable writ jurisdiction of the HC and grants them the power to judicially review decisions of the tribunal while upholding the tribunal as the court of first instance.
The Absence of Alternative Appeal Mechanisms
A service person agreed by an order passed by the Armed Forces Tribunal will have no legal recourse available to them if the HC’s writ jurisdiction is barred from entertaining such appeals. The two-judge bench in Union of India & Others v. Major General Shri Kant Sharma & Another erroneously stipulated a complete bar on the HC’s jurisdiction without considering Article 136(2) of the Constitution and Section 31 of the Act.
Article 136(2) of the Constitution and Section 31 of the Act must be read conjunctively. Article 136(2) states that sub-clause (1) of Article 136 shall not be applicable to any decision or order rendered in pursuance of the Armed Forces, indicating that the SC cannot consider a direct appeal emanating from the Armed Forces Tribunal by way of a special leave petition under Article 136(1). Section 31 of the Act further states that an appeal to the SC would only be considered if it entails “a point of general public importance”. The connotation “a point of general public importance” narrows down the jurisdiction of the SC since the grievances and contentions arising out of service matters are personal to the service persons and will not involve “a point of general public importance”.
The purported bar on the HC’s writ jurisdiction, coupled with the restriction imposed on the litigants to approach the SC, will create an abysmal legal conundrum since the aggrieved service persons will have no legal remedy at their disposal, and the Armed Forces Tribunal will perform the function of the final court. Therefore, the HC has to be the first appellate court to consider an appeal emanating from the Armed Forces Tribunal. The SC can then act as the court of second appeal against the final judgment and order of the HC.
It will be further relevant to note that the frames of the Act were aware that service matters would not qualify as matters with “a point of general public importance” under Section 31 of the Act, and the people would be left remedy if no appellate mechanism from the Armed Forces Tribunal was provided. Accordingly, the statute creates an exception for service matters under Section 14 of the Act by saving the jurisdiction, power, and authority of the HC under Article 226 and Article 227, thereby, allowing the aggrieved to approach the HC’s writ challenging jurisdiction an order of the Armed Forces Tribunal in service matters.
Article 226 versus Article 227(4) of the Constitution
The next issue of contestation is the superintendence of the Armed Forces Tribunal vis-à-vis HCs. Article 227(4) takes away the superintendence of the HCs over the Armed Forces Tribunal. In such a scenario, the HC will not function as an appellate court if the restriction on its superintendence is both judicial and administrative. However, such an interpretation does not find continuity in law. The limitation imposed on Article 227(4) cannot extend to Article 226, especially when Article 226 is not pari materia to Article 227. A plain reading of Article 227(4) would convey that the provision does not act as a non-obstante clause, and any restriction or limitation imposed therein is solely limited to Article 227(4).
in Roger Mathew v. South Indian Bank Limited & Othersa five-judge bench of the SC has clarified that Article 227(4) does not impose any restriction on the exercise of the HC’s writ jurisdiction in relation to matters arising from the Armed Forces Tribunal and the exclusion of the HC’s superintendence under Article 227 (4) “only operates qua administrative supervision by the HC and not judicial review”. Judicial review under Article 226 will take precedence over administrative supervision of the HC under Article 227(4), allowing service persons to take advantage of the HC’s exercise of judicial review against an order of the Armed Forces Tribunal.
CONCLUSION: Self-Restraint vis-à-vis Statutory Embargo imposed on the HC’s Writ Jurisdiction
The Armed Forces Tribunal performs a more integral function compared to any other tribunal since it deals with service persons from the Armed Forces, and the services mandate a certain level of decorum. To comply with such defense decorum and discipline, the Armed Forces have exclusive rules and regulations for their officers. Acknowledging the special function of the Armed Forces, the HCs have been cautious while entertaining appeals from the Armed Forces Tribunal, especially in cases of court-martial. in Union of India & Others v. Parashotam Dass, a three-judge bench of the SC categorically distinguished between the self-restraint exercised by the HC while entertaining matters emanating from the Armed Forces Tribunal as opposed to a blanket bar or restriction that may be imposed on the writ jurisdiction of the HC. Self-restraint is a judicial decision undertaken by the court after applying their mind and appreciating the facts of the case. The same cannot be equated to a blanket restriction that completely deprives the power of the HC’s review jurisdiction.
The HCs, although restrictively and with caution, have the jurisdiction to interfere with orders of the Armed Forces Tribunal. There can be no exception to the exercise of judicial review by the HC. All subject matters emanating from the Armed Forces Tribunal, including cases of courts-martial, will be amenable to the HC’s writ jurisdiction under Article 226. The same was upheld by the SC in SNMukherjee v. Union of India, wherein it was held that the HCs could even interfere with cases of courts-martial “if the said proceedings have resulted in denial of the fundamental rights guaranteed under Part III of the Constitution or if the said proceedings suffer from a jurisdictional error or any error of law apparent on the face of the record.” Article 226 is an enclosing provision forming the crux of the Constitution. The Constitution and other rights attached to it will be meaningless if people are restrained from approaching the appellate courts to remedy any injustice inflicted on them.
 Constituent Assembly Debates, Volume VII, p. 953.
(Andolan Sarkar is a law graduate at Jindal Global Law School, Sonipat. The author may be contacted via email at [email protected]).
Cite as: Andolan Sarkar, ‘Exclusion of the High Court’s Writ jurisdiction: Analysing the Appellate mechanism from the armed forces tribunal’ (The RMLNLU Law Review Blog, 22 May 2023)