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In Difficult Times Of History, Article 226 & Basic Structure Doctrine Helped People : Justice SK Kaul
Awstika Das
20 Jan 2023 8:08 PM IST
“In difficult periods in our history, it is Article 226 and the basic structure doctrine that have come to the aid of society and the people at large, and I have no hesitation in saying this,” said Supreme Court judge Justice Sanjay Kishan Kaul on Thursday (January 19) while hearing a petition raising the question of whether the jurisdiction of high courts is altogether excluded because of...
“In difficult periods in our history, it is Article 226 and the basic structure doctrine that have come to the aid of society and the people at large, and I have no hesitation in saying this,” said Supreme Court judge Justice Sanjay Kishan Kaul on Thursday (January 19) while hearing a petition raising the question of whether the jurisdiction of high courts is altogether excluded because of a statutory provision for direct appeal at the Supreme Court against an order of the Armed Forces Tribunal.
It may be noted that the comment of the judge has come at a time when there is a debate on the 'basic structure doctrine', after the Vice President criticised the Kesavanda Bharti judgment of 1973 as setting a wrong precedent.
The writ remedy provided under Article 226 could not be be ‘shuttered’ and retired soldiers and spouses of deceased defence personnel left with virtually no remedy, argued Senior Advocate Arvind Datar before the the three-judge bench which also comprised Justices Abhay S. Oka and B.V. Nagarathna.
Datar said, “The alternate remedy of the High Court is not something less than that of the Supreme Court.” This, the senior counsel submitted, was contrary to the judgements of the top court in L. Chandra Kumar v. Union of India, AIR 1990 SC 2263 and Rojer Mathew v. South Indian Bank Ltd., Referred by its Chief Manager, (2020) 6 SCC 1.
Under the Armed Forces Tribunal Act, 2007, which confers a wide array of powers on the tribunal, the apex court is the only and final body of appeal, exercising its appellate jurisdiction under Sections 30 and 31. According to the scheme of the act, the matters that travel to the Supreme Court on the back of a challenge against a ruling of the tribunal involve a point of law having ‘general public importance’, or such an issue that the top court deems worthwhile. Noting this, Justice Kaul remarked, “What troubles me is that there is no remedy in certain cases not having larger ramifications, such as pension, disability entitlement, et cetera. These are matters of the moment. But, because this court only takes up cases with substantial questions of law, the scrutiny of matters not fulfilling this condition is limited only to a single forum, with no remedy.” He also insisted that a two-tiered judicial scrutiny was necessary to ensure justice.
Pointing out the conditionality of the appellate remedy provided in the act, Justice Nagarathna said, “There must be some other remedy available otherwise the order of the Armed Forces Tribunal would attain finality, unless there is a question of general public importance.” No judicial or quasi-judicial authority in the country, she added, should feel that its decision is final and unappealable, with the exception of the Supreme Court. “That is dangerous,” the judge cautioned.
While acknowledging that the power of judicial review exercised by the High Court, even if such a power were to be conferred, would be in many ways limited with respect to orders of the Armed Forces Tribunal, Justice Kaul suggested incorporating relevant statutory amendments allowing the High Courts to deal with matters that did not involve a legal question of substantial importance. “This will make the process simpler, and the High Courts will also be cautious about its own limits,” the judge said. Additional Solicitor-General Sanjay Jain promised, “I will take up these suggestions with the concerned authorities and get back.” “Arguments concluded,” Justice Kaul pronounced, as he permitted the top law officer to submit a short note stating, inter alia, cases in which it would be inappropriate for the High Courts to exercise their jurisdiction.
The bench concluded the hearings on Thursday.
Case Title : UNION OF INDIA AND ORS. Versus PARASHOTAM DASS | C.A. No. 447/2023 and connected cases.
