Plea In Jharkhand High Court Challenges Constitutional validity of Armed Forces Tribunal Act, 2007

The writ petitioner, Dilip Kumar, has stated that he was compulsory discharge from his service due to accumulation of six summary punishments in his service-sheet. He further averred that he wishes to pursue legal proceedings against such punishments and dismissal before the Tribunal. However, the following provisions have precluded him from seeking justice, thus rendering the impugned Act ultra vires the Constitution.

Benches of Armed Forces Tribunal not within the accessible reach

Section 5(4) of the Act provides that the Benches of the Tribunal shall ordinarily sit at Delhi (which shall be known as the Principal Bench), and at such other places as the Central Government may, by notification, specify

Thus, the Petitioner has submitted that neither any bench of the Armed Forces Tribunal is located in the State of Jharkhand nor its appellate forum i.e. Supreme Court is within the accessible reach.

He submits that the provision overlooks the fact that may Petitioners may not have sufficient financial means/ conducive health/ the time to regularly visit such forums to conduct their cases. Thus, the provision is said to be violative of Articles 14 & 21 of the Constitution for restricting the access to justice.

He has also submitted that as per constitution bench judgments of the Supreme Court, since, AFT is substitution of High Courts, as such, its benches are mandatorily required to be co-located along with the High Courts.

Reliance is placed on Madras Bar Association v. Union of India, 2014 SCC Online SC 771, whereby a constitution Bench of the Supreme Court struck down a similar provision under the National Tax Tribunal Act, 2005.

Armed Forces Tribunal is un-independent as compared to High Courts

The Petitioner has submitted that under the Act, the Central Government has a substantial role in determining the sitting of benches.

Thus, it is contended that the AFT Act is un-independent as compared to High Courts for the:

• Un-independence in constituting the benches of the Tribunal as provided under Section 5(2), proviso of Section 5(3)(c) and 41(2)(a);
• Un-independence in selection of the seat of Tribunal's Benches as provided under Section 5(4);
• Un-independence in exercising the financial powers as provided under Section 12 of AFT Act r/w Rule 4 of (Financial and Administrative) Powers Rules, 2008
• Un-independence in arranging the Tribunal's infrastructure as provided under Section 13(1) of AFT Act.

It is again pointed out that similar provisions under the National Tax Tribunal Act, 2005 were struck down in Madras Bar Association (supra). It was held therein,

"It would be inappropriate for the Central Government, to have any administrative dealings with the NTT or its Members. In the jurisdictional High Courts, such power is exercised exclusively by the Chief Justice, in the best interest of the administration of justice. Allowing the Central Government to participate in the aforestated administrative functioning of the NTT, in our view, would impinge upon the independence and fairness of the Members of the NTT."

Section 19 of AFT Act for 'Contempt of Tribunal' is ultra vires

The Petitioner has submitted that it is beyond the law-making competence of the legislature to provide for the trial of "contempt of the tribunal" as if it were "contempt of court.

The Petitioner has stated that the impugned provision is violative of 14, 19 & 21 of Constitution for the following reasons:

• It vests the Tribunal with contempt jurisdiction sans any corresponding constitutional safeguards for its impartial and independent exercise of such power;
• It irrationally makes only a particular class of persons liable for the "contempt of the tribunal" and ipso facto by the necessary implication saves the Members of such Tribunal from the said liability;
• It irrationally creates a separate class of punishment for the common offence of contempt;
• It has a chilling effect on the fundamental rights of advocacy of the litigants'/attorney who appears before the Tribunal to exercise their constitutional/statutory rights.

"The bare reading of sub-Section19.(2) makes it clear that certain specific provisions of Contempt of Court Act, 1971 had been mutatis mutandis made applicable for the trial of "contempt of the tribunal". On this count, applicant humbly submits that such analogues application of Court of Contempt Act is constitutionally impermissible," the plea states.

It adds,

""Contempt of court/itself" is an offence of sui generis which is implicit in Art. 129 and 215 of Constitution of India and further expounded by Contempt of Court Act, 1971. Offence under the said class is an offence against the sovereign judicial power which is only possessed by the Hon'ble Supreme Court and Hon'ble High Courts as being of courts of records.

…An offence of "Contempt of the tribunal" is truly not 29 an offence of "contempt of court" as "tribunals" does not discharge the sovereign judicial power like "courts". It is the partake character of judicial function which tribunal performs."

Section 30(1) & 31(1) for direct appeal to Supreme Court are violative of Constitution

The plea states that Section 30(Appeal to the Supreme Court) and 31(Leave to appeal) of the impugned Act:

• Infringe the basis feature of Constitution by impliedly taking away the constitutional provision of judicial review under Article 226 & 227 of Constitution;
• Impliedly bars the Constitutional Court of High Court Judicature to decide the substantial question of law within its territorial jurisdiction.

Reliance is placed on L. Chandra v. UOI & Ors., (1997) 3 SCC 261, Clause 2(d) of Article 323A and Clause 3(d) of Article 323B of the Constitution, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional.

Other grounds:

• AFT Act, 2007 in whole is violative of Article 14 & 21 of Constitution as it doesn't provide any provision for the execution of its orders and Judgements;
• AFT Act, 2007 in whole is violative of Art.14 & 21 of Constitution, for it discriminately doesn't provide even a single right of appeal as a matter of right as having originally available before the High Courts or in similarly situated cases;
• Section 5(1) unconstitutionally provides for the appointment of Adm.inistrative Members in the Tribunal and as such is violative of Article 14 & 21 of Constitution for encroachment upon the efficacy and independence of judiciary;
• Sections 5(1), 5(2) and 19(2)(c) of the impugned Act vests equal judicial power/authority/ role in Adm. Members as that of Judicial Members, as such, violative of Article 14 & 21 of Constitution for Administrative Members are visibly devoid of legal knowledge, expertise and judicial temperament to discharge such judicial power/ authority/role qua any question of law or a tall order of substantial question of law.