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2023 (3) TMI 1567 - SC - Indian LawsJurisdiction - 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? - HELD THAT - Often many jurisprudential principles of other tribunals cannot be imported into the decisions of the Armed Forces Tribunal. The Armed Forces have their own Rules and procedures and if there is proper exercise of jurisdiction in accordance with the norms of the Armed Forces the High Court or this Court have been circumspect in interfering with the same keeping in mind the significance of the role performed by the Armed Forces. The principles of basic structure have withstood the test of time and are emphasized in many judicial pronouncements as an ultimate test. This is not something that can be doubted. That being the position the self-restraint of the High Court Under Article 226 of the Constitution is distinct from putting an embargo on the High Court in exercising this jurisdiction Under Article 226 of the Constitution while judicially reviewing a decision arising from an order of the Tribunal. On the legislature introducing the concept of Tribunalisation (one may say that this concept has seen many question marks vis- -vis different tribunals though it has also produced some successes) the same was tested in L. Chandra Kumar3 case 1997 (3) TMI 90 - SUPREME COURT before a Bench of seven Judges of this Court. Thus while upholding the principles of Tribunalisation Under Article 323A or Article 323B the Bench was unequivocally of the view that decisions of Tribunals would be subject to the jurisdiction of the High Court Under Article 226 of the Constitution and would not be restricted by the 42nd Constitutional Amendment which introduced the aforesaid two Articles. This should have put the matter to rest and no Bench of less than seven Judges could have doubted the proposition. The need for the observations in the five-Judges Bench in Rojer Mathew3 case 2019 (11) TMI 716 - SUPREME COURT (LB) qua the Armed Forces Tribunal really arose because of the observations made in Major General Shri Kant Sharma and Anr.3 2015 (11) TMI 1316 - SUPREME COURT . Thus it is reiterated and clarified that the power of the High Court Under Article 226 of the Constitution is not inhibited and superintendence and control under Article 227 of the Constitution are somewhat distinct from the powers of judicial review Under Article 226 of the Constitution. Conclusion - The power of judicial review under Article 226 is part of the Constitution s basic structure and cannot be restricted by the Armed Forces Tribunal Act. Appeal disposed off.
ISSUES PRESENTED and CONSIDERED
The primary legal question addressed in the judgment is whether orders passed by the Armed Forces Tribunal are amenable to challenge under the writ jurisdiction of High Courts under Article 226 of the Constitution of India. This issue arises from the implementation of the Armed Forces Tribunal Act, 2007, and the subsequent interpretation of its provisions in relation to the jurisdiction of High Courts. ISSUE-WISE DETAILED ANALYSIS 1. Relevant legal framework and precedents: The Armed Forces Tribunal Act, 2007, was enacted to provide an independent adjudicatory forum for defense personnel, addressing service matters and providing judicial appeal mechanisms. The Act was influenced by prior recommendations and judicial pronouncements, including the Supreme Court's urging in Lt. Col. Prithi Pal Singh Bedi v. Union of India and the Estimate Committee of Parliament's 19th Report. The legal framework includes Articles 226 and 227 of the Constitution, which confer powers of judicial review and superintendence on High Courts. The Constitution Bench judgment in L. Chandra Kumar v. Union of India established that the power of judicial review under Article 226 is part of the Constitution's basic structure. The judgment in S.N. Mukherjee v. Union of India further affirmed the High Courts' power of judicial review over courts-martial proceedings. 2. Court's interpretation and reasoning: The Court emphasized the distinction between the powers of judicial review under Article 226 and the power of superintendence under Article 227. It clarified that the restriction under Article 227(4) applies only to administrative supervision and not to judicial review. The Court rejected the interpretation in Major General Shri Kant Sharma and Anr., which sought to bar High Court jurisdiction under Article 226, as contrary to established constitutional principles. 3. Key evidence and findings: The Court considered the restrictive appellate mechanism provided under Sections 30 and 31 of the Armed Forces Tribunal Act, which allows appeals to the Supreme Court only on points of law of general public importance. The Court noted that many service matters are personal and do not involve such points, leaving litigants without a viable appellate forum if High Court jurisdiction is barred. 4. Application of law to facts: The Court applied the principles established in L. Chandra Kumar and other precedents to conclude that High Courts retain jurisdiction under Article 226 to review decisions of the Armed Forces Tribunal. The Court emphasized the importance of providing at least two independent judicial scrutinies in administrative jurisprudence, particularly for personal service matters. 5. Treatment of competing arguments: The Court addressed arguments from the Union of India and the JAG Branch, which sought to limit High Court jurisdiction in certain cases, such as courts-martial and disciplinary matters. The Court rejected these arguments, emphasizing that judicial review under Article 226 is essential to protect fundamental rights and correct jurisdictional errors. 6. Conclusions: The Court concluded that the judgment in Major General Shri Kant Sharma and Anr. does not lay down the correct law and conflicts with Constitution Bench judgments. High Courts have jurisdiction under Article 226 to review Armed Forces Tribunal decisions, ensuring access to judicial remedies for service members. SIGNIFICANT HOLDINGS The Court held that the power of judicial review under Article 226 is part of the Constitution's basic structure and cannot be restricted by the Armed Forces Tribunal Act. The Court reaffirmed that High Courts have jurisdiction to review Armed Forces Tribunal decisions, even in personal service matters, unless there is a specific constitutional or statutory bar. The Court emphasized that the restriction under Article 227(4) applies only to administrative supervision and not to judicial review. It clarified that judicial review is essential to protect fundamental rights and correct jurisdictional errors, and that High Courts are conscious of the scope of their jurisdiction under Article 226. The Court remanded several cases to High Courts for decision on merits, acknowledging that these matters do not involve points of law of general public importance and require individual scrutiny. The Court also disposed of a writ petition challenging the vires of Sections 30 and 31 of the Armed Forces Tribunal Act, allowing the petitioner to approach the High Court.
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