The Supreme Court has held that the orders passed by the Armed Forces Tribunal can be challenged under Article 226 of the Constitution before the High Courts.

The Court has overruled its judgment in the case of Union of India & Ors. v. Major General Shri Kant Sharma & Anr. (2015) 6 SCC 773 wherein it created a complete bar to the High Court’s power to review decisions arising from the Armed Forces Tribunal under Article 226.

The three-Judge Bench comprising Justice Sanjay Kishan Kaul, Justice Abhay S. Oka, and Justice B.V. Nagarathna observed, “We have, thus, no hesitation in concluding 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 the Constitution Benches rendered prior and later to it, including in L. Chandra Kumar case, S.N. Mukherjee case, and Rojer Mathew case making it abundantly clear that there is no per se restriction on the exercise of power under Article 226 of the Constitution by the High Court. However, in respect of matters of self-discipline, the principles already stand enunciated.”

The Bench said that it believes that the High Courts are quite conscious of the parameters within which the jurisdiction is to be exercised, and those principles, in turn, are also already enunciated by the Apex Court.

Senior Advocate Arvind Datar and Advocate K. Parameshwar appeared for the appellants while Advocate Rakesh Dahiya appeared for the respondent.

Brief Facts

Many cases relating to service matters of members of the three-armed forces of the Union of India were 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. The then-existing system of administration of justice in the 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 among the members of the three services. A Bill was introduced to provide for a 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, came into being with effect from 2008 and saw some amendments subsequently.

The question before the Supreme Court was whether the order passed by the Armed Forces Tribunal would be amenable to challenge in the writ jurisdiction under Article 226 before any High Court. The Court while dealing with this question noted, “To deny the High Court to correct any error which the Armed Forces Tribunal may fall into, even in exercising jurisdiction under Article 226, would be against the constitutional scheme. The first independent judicial scrutiny is only by the Armed Forces Tribunal. To say that in some matters, a judicial scrutiny would amount to a second appeal, would not be the correct way to look at it.”

The Apex Court further asserted that it should be kept in mind is that in administrative jurisprudence, at least two independent judicial scrutinies should not be denied.

“How can courts countenance a scenario where even in the aforesaid position, a party is left remediless? It would neither be legal nor appropriate for this Court to say something to the contrary or restrict the aforesaid observation enunciated in the Constitution Bench judgment in S.N. Mukherjee23 case. We would loath to carve out any exceptions, including the ones enumerated by the learned Additional Solicitor General extracted aforesaid as irrespective of the nature of the matter, if there is a denial of a fundamental right under Part III of the Constitution or there is a jurisdictional error or error apparent on the face of the record, the High Court can exercise its jurisdiction”, said the Court.

The Court also said that there appears to be a misconception that the High Court would re-appreciate the evidence, thereby making it into a second appeal, etc.

“We also fail to appreciate as to why there should be any apprehension of diluting the jurisdiction of the Supreme Court as envisaged under the Act or the constitutional scheme, based on observations made by us in the present judgment”, observed the Court.

Accordingly, the Apex Court disposed of the appeals and overruled its judgment.

Cause Title- Union of India & Ors. v. Parashotam Dass

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