Armed Forces Tribunal Act Excludes Administrative Supervision Of High Court But Not Judicial Superintendence & Jurisdiction U/A 226: Delhi HC

The Delhi High Court has held that while the Armed Forces Tribunal Act, 2007 excludes the administrative supervision of the High Court under Article 227(4) of the Constitution but, it does not exclude the judicial superintendence and jurisdiction under Article 226.

A division bench comprising of Justice Manmohan and Justice Navin Chawla was dealing with a bunch of pleas raising the issue as to whether the power of Judicial Review conferred upon the High Courts under Articles 226 and 227 has been taken away in view of the judgment passed by the Supreme Court in Union of India and Ors. vs. Maj. Gen. Shri Kant Sharma and Anr. thereby denying litigants the right to approach High Court in writ jurisdiction against the judgment and orders passed by Armed Forces Tribunal.

It was argued on behalf of the petitioners that a coordinate Division Bench of the High Court in Brijlal Kumar & Ors. vs. Union of India & Ors had held that a writ petition is maintainable against the final order passed by Armed Forces Tribunal.

On the other hand, it was the case of the Respondents that the said judgment was per incuriam as being contrary to the judgment passed by the Apex Court and that the same was not set aside or overruled till date.

The High Court was of the view that the Writ Court while examining the judgment or order passed by the Tribunal, will exercise the power of judicial review meaning thereby that the Court shall examine the decision-making process and interfere only for correcting errors of jurisdiction or errors apparent on the face of record or if the Tribunal acts illegally.

"This Court would like to emphasise, with all the power that it commands, that judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined. Further, the writ jurisdiction of High Court cannot be exercised "in the cloak of an appeal in disguise"," the Court observed.

The Court emphasized that the Tribunal has to function under the Statute, whereas the higher judiciary being High Courts and the Supreme Court, a Constitutional authority, is entrusted not only with the task of interpreting the laws and the Constitution, but also with judicial superintendence over the Tribunals in order to preserve the independence of judiciary while discharging the sovereign function of dispensing justice.

"The Constitution confers on the Constitutional Court the power of judicial review which is exclusive in nature. Judicial review goes some way to answer the age old question 'who guards the guards'? Judicial review among many other important aspects of the Constitution is indispensable and while creating any other mode of adjudication of disputes, the judicial review cannot be compromised with," it added.

It said "Consequently, the power of judicial review has consistently been held to be one of the basic features of the Constitution. Basic feature i.e. forming core structure of the Constitution. The said core structure cannot be affected even by way of constitutional amendment."

The Court concluded that the jurisdiction of High Court under Articles 226 and 227 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.

On other aspects, the Court found that Section 14 of the Armed Forces Tribunal Act, 2007 itself explicitly stipulated that though the Tribunal has wide powers, yet it does not exercise the power of the Supreme Court or the High Court under Articles 226 and 227 of the Constitution of India.

Consequently, the Court said that the Act itself preserves the writ jurisdiction of the High Courts.

The Court thus observed that the power of judicial review under Articles 226 and 227 of the Constitution vests with the High Court even with regard to judgments and orders passed by the Armed Forces Tribunal and this power is a part of the basic structure of the Constitution as has been held by the Supreme Court in L.Chandra Kumar and Rojer Mathew cases.

Adding to the aforesaid, the Court observed that Article 33 of the Constitution does not restrict or curtail the right of a person in uniform to file a writ petition.

"By virtue of Article 33 of the Constitution, the Parliament, while enacting the Army Act (Rule 21), the Air Force Act and the Navy Act, has only prohibited members of the armed forces from taking part in political and non-military activities. These are the only restrictions provided under the said statutes. There is no provision in any of the aforesaid three statutes which prohibits filing of writ petitions under Articles 226 and 227 of the Constitution. Consequently, the judgment in Prithi Pal Singh Bedi (supra) has no application to the present case," the Court said.

The Court was also of the view that neither Section 30 nor Section 31 of the Armed Forces Tribunal Act, 2007 which provide for leave to appeal to the Supreme Court, constitute an alternative effective remedy in all cases where the parties are aggrieved by the decision passed by Armed Forces Tribunal and where the Tribunal refuses leave to appeal.

With the said observations, the Court rejected the preliminary objection raised by the Centre with regards to the maintainability of the petitions.

"List the present batch of matters before the roster bench for consideration in accordance with the parameters laid down hereinabove on 21st March, 2022," the Court ordered.

Also Read: Armed Forces Tribunal Act Cannot Curtail High Court's Power Of Judicial Review U/A 226: Allahabad High Court

Case Title: WING COMMANDER SHYAM NAITHANI v. UNION OF INDIA AND ORS.

Citation: 2022 LiveLaw (Del) 207

Click Here To Read Order