As per the constitutional
scheme and also law laid down by Constitution Benches of the Supreme Court,
orders from tribunals are amenable to the jurisdiction of the High Courts.
However, the Supreme Court in a judgment rendered in 2015, had held that since
an appellate provision for a direct appeal to the Supreme Court was provided from
the orders of the AFT within the AFT Act, the High Courts should refrain from exercising
their writ jurisdiction for judicial review.
This practically
rendered litigants remediless from the orders of the AFT since as per the Act,
only matters involving a “point of law of general public importance” can be
appealed to the Supreme Court from the AFT, meaning thereby that issues that
are personal to the litigant, cannot be challenged in any forum and the AFT
practically becomes the Court of first and last instance. Approaching the
Supreme Court directly makes justice inaccessible and unaffordable for the
common litigant.
In 2019 however, another
bench of the Supreme Court had held that the writ jurisdiction of the High Courts
provided in the Constitution, High Courts being constitutional courts, cannot
be taken away even by legislation and that High Courts can exercise judicial
review over AFT.
The Delhi High Court
has now laid down the areas of litigation where High Courts can exercise judicial
review over the AFT, essentially holding that High Courts can intervene in
cases which do not involve “a point of law of general public importance”.
The judgment and related details can be accessed here at Bar & Bench.
1. It is most unfortunate that the judiciary as well as petitioners/ respondents have ignored the reasons why the Armed Forces Tribunal (AFT) was established by the government. Before the AFT came in being, the armed forces personnel could approach a High Court as well as the Supreme Court through writ jurisdiction for their service grievances and against the findings/ sentence of a court martial. The Government was also concerned that the pendency of such cases of the armed forces personnel in 2005 had reached a figure of 9449 [High Courts 9324 and the Supreme Court 125].
ReplyDelete2. The AFT Bill (2005) in the “Statement of Objects and Reasons” has referred the Supreme Court judgement in PPS Bedi v. Union of India (1982), where the Court had held that “at least one judicial review in the service matters be provided.” Para 3 of the “Statement” clarified the intention of the legislature: “……. it is proposed to enact a new legislation by constituting AFT…… to provide for quicker and less expensive justice to the members of the armed forces of the Union.” Thus the Parliament was aware about prolonged delays and high costs involved in the litigation in the Higher Court in India.
3. Incidentally, the pendency of the cases in the High Court and the Supreme Courts is very high. As on March 02, 2022, there are over 70, 000 cases pending in the Supreme Court and nearly 56,00,000 in various High Courts. This pendency across all courts is growing by 2.8% annually.
4. It has been wrongly stated that the AFT has taken away the writ jurisdiction of the High Court. There are number of matters which are not under the original or appellate jurisdiction of the AFT. For instance in (i) Summary court martial where punishment is RI for 3 months or less, (ii) Award of minor punishment to officers and other ranks, (iii) Award of censure, (iv) Matters relating to leave and postings, etc, the affected individuals have the right to approach the High Court under the writ jurisdiction.
5. Further, Section 31 of the AFT has to be read in full. It states: “An appeal to the Supreme Court shall lie with the leave of the Tribunal and such leave shall not be granted unless it is certified by the Tribunal that a point of law of general public importance is involved in the decision, or it appears to the Supreme Court that the point is one which ought to be considered by the Court. “ Therefore even in cases where AFT has not given leave to appeal, the Supreme Court can still allow an appeal.
6. In case an appeal is allowed from the AFT to High Courts, the pendency of cases as well as cost of litigation is going to increase further. This will be beneficial to only one fraternity and will be against the aims and objective of the AFT.
Wg Cdr U C Jha (Retd)
So the argument is that this simply benefits attorneys ("only one fraternity")?
ReplyDeleteThis comment has been removed by the author.
DeleteThis comment has been removed by the author.
ReplyDeleteIn reply to Wg Cdr Jha’s comment:
ReplyDeleteSir,
With all due respect, let me put forth the following facts-
Firstly, the pendency in the High Courts (which is divided amongst all High Courts of different States and further all individual judges of the said High Courts) cannot be a reason to block access to affordable justice. The decision of the Seven Judge Constitution Bench in L Chandra Kumar remains binding dicta and recognizes that a direct appeal to the Supreme Court from a tribunal makes justice inaccessible and unaffordable, besides burdening the highest Court of the land with routine matters and converting it into a first appellate court. Also, when the AFT was created, the total pendency in all High Courts all over India was about 9000 cases, and today, thirteen years after the AFT was created, the pendency of military cases is 19000! Whither argument! In any case, a statutory quasi-judicial tribunal which functions under the executive and depends for day to day functioning on the same instrumentalities against which it has to pass orders, can never equate itself with an independent Constitutional Court- the High Court. Article 226 of our Constitution firmly puts all tribunals under the judicial superintendence of the High Courts and our personal opinions are of no great effect on the constitutional scheme.
Secondly, I fail to understand how a direct appeal to the Supreme Court from a Court of first instance (the AFT) makes justice “quick and less expensive”. Would it be quicker and less expensive to have a judicial review in the jurisdictional High Court of each State or directly to the Supreme Court? Would you want a widow from Kerala to argue her case of pension of Rs 9000 per month (About $120 per month) in the Supreme Court where the cost of litigation is unaffordable even for the rich, in case she fails to secure justice from the AFT?
Thirdly, you are not right in saying that the Supreme Court can intervene even where the AFT has not given “leave to appeal” just on a plain textual reading of Section 31. I say this because this has already been declared so by the Supreme Court in a series of decisions, Yogesh Pathania being the latest in the series, wherein the Court has held that the Supreme Court shall only exercise jurisdiction over an order of the AFT if the matter involves a “point of law of general public importance”. You may peruse Para 13 of the said judgment: https://indiankanoon.org/doc/189569179/ Where would you want litigants to go in case their cases do not involve a point of law of general public importance, which is 99.99% of cases?
Yes, I agree, the judgment shall only benefit one fraternity- the military community.
Warm Regards
Navdeep Singh
Advocate, Punjab & Haryana High Court
Let me clarify more on this.
ReplyDeleteIn the AFT, the Chairman is a retired chief justice of a High Court or judge of the Supreme Court. If the Chairman of the Tribunal himself is a Supreme Court judge/ retired chief justice of high court, then how can a high court judge hear appeal against his judgement? There can be no equation between AFT and other Tribunals. For example, in Central Administrative Tribunal (CAT), single member also constitutes a Bench [section 5(6)]. However, in the Armed Forces Tribunal, the minimum number of members to constitute a Bench is two: one retired judge of a high court and another administrative member--a retired officer of the armed forces of the rank of Lt General or equivalent. The Principal bench consists of the Chairman and an administrative member. Further, Article 227(iv) of the Constitution excludes the power of superintendence of High Courts over any court or Tribunal constituted by or under any law relating to the Armed Forces. Therefore, an individual cannot go to the High Court in appeal against the order of the Armed Forces Tribunal.
Wg Cdr U C Jha (Retd)
ReplyDeleteSir,
That’s quite an odd thing to say, legally.
All tribunals in India are headed by retired HC or SC judges in India. So, by your logic, HCs and SC cannot hear cases against orders passed by these tribunals?
There’s a difference between the sitting Judge of a Constitutional Court exercising sovereign judicial power of the State and a retired judge heading a statutory body. In fact, we need not go far and the Constitution Bench of the Supreme Court in Rojer Mathew case (https://indiankanoon.org/doc/36423291/ Read Paras 190 to 197) has itself answered this in the following terms:
“…Furthermore, that even though manned by retired judges of High Courts and the Supreme Court, such Tribunals established under Article 323-A and 323-B of the Constitution cannot seek equivalence with High Courts or the Supreme Court. Once a judge of a High Court or Supreme Court has retired and he/she no longer enjoys the Constitutional status, the statutory position occupied by him/her cannot be equated with the previous position as a High Court or a Supreme Court judge. The rank, dignity and position of Constitutional judges is hence sui generis and arise not merely by their position in the Warrant of Precedence or the salary and perquisites they draw, but as a result of the Constitutional trust accorded in them…”
Even your observation on Article 227(4) has been answered in Rojer Mathew in the following terms in Para 220:
“…It is hence clear post L Chandra kumar (supra) that writ jurisdiction under Article 226 does not limit the powers of High Courts expressly or by implication against military or armed forces disputes. The limited ouster made by Article 227(4) only operates qua administrative supervision by the High Court and not judicial review. Article 136(2) prohibits direct appeals before the Supreme Court from an order of armed forces tribunals, but would not prohibit an appeal to the Supreme Court against the judicial review exercised by the High Court under Article 226...”
Regards
Navdeep.