High Courts Can Entertain Challenges To Orders Passed By Armed Forces Tribunal : Supreme Court Overrules Its Judgment

The Supreme Court, on Tuesday, overruled its decision in Union of India And Ors. v. Major General Shri Kant Sharma And Anr.  which barred the exercise of jurisdiction under Article 226 of the Constitution of India in cases assailing orders passed by the Armed Forces Tribunal.

Answering the question, "whether the right of appeal under Section 30 of the Armed Forces Tribunal Act, 2007 against an order of Armed Forces Tribunal with the leave of the Tribunal under Section 31 of the Act or leave granted by the Supreme Court, or bar of leave to appeal before the Supreme Court under Article 136(2) of the Constitution of India, will bar the jurisdiction of the High Court under Article 226 of the Constitution of India regarding matters related to Armed Forces", the Apex Court in Union of India And Ors. v. Major General Shri Kant Sharma And Anr. had held that the jurisdiction of High Courts is barred.

A Bench comprising Justice SK Kaul, Justice AS Oka and Justice BV Nagarathna noted the decision in Major General Shri Kant Sharma And Anr. had indeed diluted provisions of judicial review, which forms the basic structure of the Constitution. Moreover, it was held that the judgment in Major General Shri Kant Sharma is in the teeth of the judgments in L Chandra Kumar v. Union of India and Rojer Mathew v. South Indian Bank Ltd. And Ors., which held that per se there are no restrictions on the exercise of power under Article 226 of the Constitution

The larger issue before the Bench was whether the orders passed by the Armed Forces Tribunal set up under the Armed Forces Tribunal Act, 2007 would be amenable to challenge before High Court in exercise of writ jurisdiction under Article 226 of the Constitution of India. It noted that when the concept of tribunalisation was upheld in L Chandra Kumar v. Union of India the Court had unequivocally opined that the orders passed by the Tribunals would be subject to the jurisdiction of the High Court under Article 226. It observed -

“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.”

It added that the judicial scrutiny by the High Court would not to be denied -

“What should be kept in mind is that in administrative jurisprudence, at least two independent judicial scrutinies should not be denied, in our view. A High Court Judge has immense experience. In any exercise of jurisdiction under Article 226, the High Courts are quite conscious of the scope and nature of jurisdiction, which in turn would depend on the nature of the matter.”

Placing reliance on the judgment of the Constitution Bench in SN Mukherjee v. Union of India the Bench noted that even in respect to courts martial, the High Court could grant appropriate relief under certain circumstances, if the proceedings resulted in denial of fundamental rights or it suffered jurisdictional error or an error apparent on the face of record. The Bench stated that it cannot hold contrary to the principle enunciated by the Constitution Bench or curve out any exceptions to the same.

The Bench emphasised that the concern High Court would re-appreciate the evidence can be put to rest as the High Courts are conscious of the parametres for exercising its jurisdiction and are guided by the principles laid down by the Apex Court. It further added -

“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.”

Case details

Union of India And Ors. v. Parashotam Dass| 2023 LiveLaw (SC) 224   |Civil Appeal No. 447 of 2023| 21st March, 2013| Justice Sanjay Kishan Kaul, Justice Abhay S. Oka and Justice BV Nagarathna

Constitution of India - Article 226- Writ petitions challenging orders of Armed Forces Tribunal are maintainable- 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- Overrules Union of India And Ors. v. Major General Shri Kant Sharma And Anr (2015) 6 SCC 773