2022 (3) TMI 1575 - HC - Indian Laws

Maintainability of petition - Whether the power of Judicial Review, a basic feature of the Constitution of India conferred upon the High Courts under Articles 226 and 227 has been taken away totally in view of the judgment passed by the Supreme Court in UNION OF INDIA ORS. VERSUS MAJOR GENERAL SHRI KANT SHARMA ANR. 2015 (11) TMI 1316 - SUPREME COURT thereby denying litigants the right to approach High Court in writ jurisdiction against the judgment and orders passed by Armed Forces Tribunal? HELD THAT - The jurisdiction of High Court under Articles 226 and 227 of the Constitution cannot be bypassed merely by making a provision for direct appeal to the Supreme Court against an order of a Tribunal for the reason that the Apex Court exercises jurisdiction under Sections 30 and 31 of the Armed Forces Tribunal Act, 2007 only if a point of law of general public importance is involved. The Armed Forces Tribunal Act, 2007 excludes the administrative supervision of the High Court under Article 227(4) of the Constitution but not judicial superintendence and certainly not jurisdiction under Article 226 of the Constitution. In ROJER MATHEW VERSUS SOUTH INDIAN BANK LTD. OTHERS 2019 (11) TMI 716 - SUPREME COURT , a Constitution Bench of the Supreme Court has held that Article 226 of the Constitution does not restrict writ jurisdiction of High Courts over the Armed Forces Tribunal observing the same can neither be tampered with nor diluted. Instead, the Supreme Court has held that High Court s jurisdiction has to be zealously protected and cannot be circumscribed by the provisions of any enactment. The preliminary objection raised by Union of India with regard to the maintainability of the present writ petitions is rejected. List the present batch of matters before the roster bench for consideration in accordance with the parameters laid down hereinabove on 21st March, 2022.

Summary

Issues Involved:
1. Power of Judicial Review under Articles 226 and 227.
2. Maintainability of writ petitions against Armed Forces Tribunal orders.
3. Interpretation of Sections 30 and 31 of the Armed Forces Tribunal Act, 2007.
4. Application of Article 33 of the Constitution.
5. Access to justice and its implications.

Issue-Wise Detailed Analysis:

1. Power of Judicial Review under Articles 226 and 227:
The court emphasized that the power of judicial review vested in the High Courts under Articles 226 and 227 is a basic feature of the Constitution that cannot be overridden by any statute, including the Armed Forces Tribunal Act, 2007. The Supreme Court in Sangram Singh Vs. Election Tribunal, Kotah and Anr., (1955) 2 SCR 11, and L. Chandra Kumar Vs. UOI and Ors., (1997) 3 SCC 261, has consistently held that judicial review is an integral part of the Constitution’s basic structure. Section 14 of the Armed Forces Tribunal Act, 2007, explicitly preserves the writ jurisdiction of the High Courts, reinforcing that the High Court's judicial review powers cannot be ousted by legislation.

2. Maintainability of writ petitions against Armed Forces Tribunal orders:
The court rejected the preliminary objection raised by the Union of India regarding the maintainability of writ petitions. It was argued that Sections 30 and 31 of the Armed Forces Tribunal Act, 2007, provide an appeal mechanism to the Supreme Court, but this is limited to cases involving substantial questions of law of general public importance. The court noted that matters such as pay, pension, promotion, and discipline are personal to the litigants and do not generally involve substantial questions of law of general public importance, thus limiting the effectiveness of the appeal to the Supreme Court. The court also referenced the Supreme Court's judgment in Balkrishna Ram vs. Union of India and Anr., (2020) 2 SCC 442, which reinstated the High Courts' right to entertain writ petitions against Armed Forces Tribunal orders in cases of glaring illegality or where the Tribunal acts illegally.

3. Interpretation of Sections 30 and 31 of the Armed Forces Tribunal Act, 2007:
Sections 30 and 31 were scrutinized to determine if they constitute an alternative effective remedy. The court concluded that these sections do not provide an effective remedy in all cases, particularly where the Tribunal refuses leave to appeal. The Supreme Court in Ex. Lac Yogesh Pathania vs. Union of India & Others, (2019) 4 SCC 311, held that the Supreme Court would exercise jurisdiction under these sections only where substantial questions of law of general public importance are involved. The court also noted that interlocutory orders of the Armed Forces Tribunal are not appealable under Section 30.

4. Application of Article 33 of the Constitution:
The court clarified that Article 33 does not restrict or curtail the right of persons in uniform to file writ petitions under Articles 226 and 227. Article 33 allows Parliament to restrict or abrogate certain fundamental rights of armed forces members to ensure discipline and proper discharge of duties. However, the statutes enacted under Article 33, such as the Army Act, Air Force Act, and Navy Act, do not prohibit the filing of writ petitions. The court distinguished the present case from the judgment in Prithi Pal Singh Bedi vs. Union of India & Anr., (1982) 3 SCC 140, which dealt with restrictions on political and non-military activities.

5. Access to justice and its implications:
The court emphasized that access to justice is a basic and inalienable human right, integral to the right to life under the Constitution. The remedy of appeal to the Supreme Court may be ineffective for many armed forces members due to the costs and logistical challenges. The Supreme Court in Gujarat Urja Vikas Nigam Limited Vs. Essar Power Limited, (2016) 9 SCC 103, noted that routine appeals to the highest court could obstruct its constitutional role. The Law Commission of India, in its Report No.272, also supported the view that High Courts should retain their power of superintendence and control over tribunals to ensure access to justice.

Conclusion:
The court concluded that the power of judicial review under Articles 226 and 227 of the Constitution is a basic feature that cannot be bypassed. The Armed Forces Tribunal Act, 2007, does not provide an effective alternative remedy in all cases, and the High Courts retain their jurisdiction to entertain writ petitions against Tribunal orders. The court rejected the preliminary objection raised by the Union of India and directed the matters to be listed before the roster bench for further consideration.