Summary
In a batch of matters arising from the Armed Forces Tribunal, the question was whether its orders can be challenged before a High Court under Article 226, given Major General Shri Kant Sharma, which had barred that jurisdiction, and given that appeal to the Supreme Court under Sections 30 and 31 of the Armed Forces Tribunal Act, 2007 lies only on a point of law of general public importance. A three-Judge Bench held that Shri Kant Sharma does not lay down correct law and conflicts with L. Chandra Kumar, S.N. Mukherjee and Rojer Mathew: judicial review under Article 226 is part of the basic structure, Article 227(4) ousts only administrative superintendence, and no categories can be carved out. Matters dismissed as not maintainable were remitted to the High Courts.
Issues
- Whether orders of the Armed Forces Tribunal are amenable to the writ jurisdiction of the High Courts under Article 226 of the Constitution, and whether the decision in Union of India v. Major General Shri Kant Sharma restricting that jurisdiction lays down the correct law.
- Whether certain categories of matters, such as courts-martial, discipline, pension or secrecy cases, should be excluded from judicial review under Article 226.
Provisions considered
- Article 226, Constitution of IndiaThe power of judicial review of the High Courts over decisions of all tribunals is part of the basic structure as held in L. Chandra Kumar; self-restraint by the High Court is distinct from an embargo, and the power is not inhibited in respect of the Armed Forces Tribunal. (¶¶ 4, 14, 25, 26, 32)
- Article 227(4), Constitution of IndiaDenies the High Court powers of superintendence over courts or tribunals relating to the Armed Forces; as held in Rojer Mathew this limited ouster operates only on administrative supervision and not on judicial review under Article 226. (¶¶ 9, 10, 11, 15, 26)
- Article 136(2), Constitution of IndiaBars direct special leave petitions against orders of Armed Forces tribunals but does not prohibit an appeal against the High Court's exercise of judicial review under Article 226. (¶¶ 6, 15)
- Sections 14, 30 and 31, Armed Forces Tribunal Act, 2007Section 14 expressly saves the jurisdiction of the High Courts under Articles 226 and 227; the appeal to the Supreme Court under Sections 30 and 31 lies only with leave on a point of law of general public importance, a restrictive mechanism that leaves litigants in personal service matters such as pension without any remedy if Article 226 were barred. (¶¶ 7, 8, 17, 18, 19, 27, 28)
Held
- The seven-Judge Bench in L. Chandra Kumar settled that decisions of tribunals are subject to the High Court's jurisdiction under Article 226 and no smaller Bench could doubt it; the observations in Major General Shri Kant Sharma putting an embargo on that jurisdiction dilute a provision forming part of the basic structure and do not lay down correct law, being in conflict with L. Chandra Kumar, S.N. Mukherjee and Rojer Mathew. (¶¶ 25, 26, 32)
- The Act provides only a single judicial review by the Tribunal of administrative or disciplinary decisions, and the appeal to the Supreme Court is confined to points of general public importance; denying the High Court the power to correct errors in matters personal to the litigant, such as pension, would be against the constitutional scheme, since at least two independent judicial scrutinies should not be denied, and such review is not a second appeal. (¶¶ 27, 28)
- There is no necessity to carve out categories such as courts-martial, discipline, pension or secrecy matters from Article 226; as held in S.N. Mukherjee, even in courts-martial the High Court may grant relief where fundamental rights are denied or there is a jurisdictional error or error apparent on the face of the record, and the High Courts are conscious of the parameters of that jurisdiction. The Supreme Court's own jurisdiction is not diluted. (¶¶ 29, 30, 31, 32)
Result
Appeals and writ petition disposed of: matters dismissed by High Courts as not maintainable in view of Major General Shri Kant Sharma remanded to the respective High Courts for decision on merits under Article 226; the Union's appeal in Parashotam Dass to be heard on merits by a two-Judge Bench; the Thomas Vaidyan matter remanded to the High Court; the Article 32 petition challenging Sections 30 and 31 disposed of with liberty to approach the High Court; parties to bear their own costs.