Supreme Court of India restores the jurisdiction of High Courts over orders passed by the Armed Forces Tribunal

In a major development, the Supreme Court of India (SC) has practically restored the jurisdiction of the High Court (HC) over orders passed by the Armed Forces Tribunal (AFT).

Though orders of the AFT were being challenged in the jurisdictional HCs till the year 2015, on 11^th March that year a Division Bench of the SC had rendered a decision ruling that since an appeal from the AFT was provided directly to the SC as per the AFT Act, the HCs should restrain themselves from exercising judicial review over the AFT under the writ jurisdiction.

The 2015 judgement had practically rendered litigants remediless since as per Section 31 of the AFT Act, a litigant can file an appeal directly to the SC only if the matter involves a “point of law of general public importance”. The judgement was also in conflict with a Seven Judge Bench decision of the year 1997 which provided that HCs shall exercise writ jurisdiction over statutory tribunals located within their jurisdiction.

In November 2019, a Five Judge Constitution Bench of the SC while dealing with multiple matters regarding the functioning of tribunals in India, wherein a set of rules promulgated by the Government undermining the judicial independence of such quasi judicial bodies were under challenge, had observed that even the Parliament did not have the powers to take away the writ jurisdiction of HCs and that in view of the earlier Seven Judge Bench decision, the HCs’ authority of judicial review over AFT could not be undermined.

The law the last week has now been specifically reiterated by the SC wherein it has been observed that the 2015 decision could not overrule the law already laid down by the SC earlier, especially in view of Constitutional provisions.

Many myths have surrounded the issue, with certain military veterans (now thankfully in minority) claiming that this could prolong litigation by adding another judicial layer. However, such thoughts stem from lack of knowledge. Firstly, nowhere in the world do we have an instance wherein an appeal is provided from the court of first instance to the highest court of the land. Military litigants cannot be denied access to justice on any ground. Secondly, the 2015 decision had converted the AFT into the first and the last court for military litigants since an appeal to the SC was also not possible unless the case involved a “point of law of general public importance”. Thirdly, the (faux) pretext of a quick-fix formula of approaching the highest court directly made AFT litigants lesser citizens by denying them the affordable and accessible access to justice within their States in the HCs. A case in point being that similarly placed civil employees have the right to approach HCs. Fourthly, it is a misnomer that HCs prolong the proceedings since statistics show that division benches of HCs are much quicker in dispensing justice than the SC. To take an example, about 111 writ petitions were filed in the Punjab & Haryana High Court alone against AFT orders in the year 2014, and the rate of disposal was 101 cases. Fifthly, it is also well known that the SC is very slow in interfering in matters brought before it once those have been filtered through a division bench of the HC, which is also a Constitutional Court like the SC, than appeals brought directly to the SC from a tribunal. Hence most litigation is likely to terminate at the HC. Sixthly, the jurisdiction of the SC is anyway meant to be invoked rarely and it cannot be converted into the first appellate Court for matters that are personal to litigants.

A detailed news-report in The Tribune can be accessed here.

An oped by this author published in the year 2015 in The Indian Express just after the said decision had been rendered can be accessed here.

A report by the Business Standard on this subject, reflecting the helplessness of the father of an Air Force officer who died in a fighter jet crash in an operational area, can be accessed here.