The Supreme Court (SC) has held that all
appeals against orders passed by the Armed Forces Tribunals (AFT) would lie
with it and not with the high courts. The judgment, passed on 11 March, has
implications for serving and retired defence personnel who have moved against
the AFT to seek judicial redressal of their grievances.
Disposing of a bunch of civil appeals, an
SC Bench comprising Justices Sudhansu Jyoti Mukhopadhaya and NV Ramana upheld
the judgments on the issue passed by the Allahabad High Court and the Andhra
Pardesh High Court. The Bench, at the same time, set aside judgments passed by
the Delhi High Court, which had ruled that high courts are empowered to hear
appeals against AFT orders.
The Bench observed that Section 31 of the
AFT Act specifically provides for an appeal to the Supreme Court but stipulates
two distinct routes for such an appeal. The first route is sanctioned by the
tribunal itself, granting leave to file such an appeal if a point of law of
general public importance is involved. The second route is through provisions
of the same section, which “appears to the Supreme Court” empowering it to
permit the filing of an appeal against any AFT order.
Based upon earlier SC judgments, the Bench
also observed that the high court will not entertain a petition under Article
226 of the Constitution if an effective alternative remedy is available to the
aggrieved person or the statute, under which the complaint has been taken,
contains a mechanism for redressal of grievance.
A bench of justices S.J. Mukhopadaya and
N.V. Ramana said: “When a statutory forum is created by law for redressal of
grievances, a writ petition should not be entertained ignoring the statutory
dispensation. The high court will not entertain a petition under Article 226 of
the Constitution if an effective alternative remedy is available to the
aggrieved person or the statute under which the action complained of has been
taken itself contains a mechanism for redressal of grievance.”
Justice Mukhopadaya said: “It is clear from
the scheme of the AFT Act that jurisdiction of the tribunal constituted under
the Armed Forces Tribunal Act is in substitution of the jurisdiction of civil
court and the high court so far as it relates to suit relating to condition of
service of the persons subject to Army Act, Navy Act and the Air Force Act,
1950.”
“When a statutory forum is created by law
for redressal of grievances, a writ petition should not be entertained ignoring
the statutory dispensation. The High Court will not entertain a petition under
Article 226 of the Constitution if an effective alternative remedy is available
to the aggrieved person or the statute under which the action complained of has
been taken itself contains a mechanism for redressal of grievance,” the Bench
noted.
In 2012, the Supreme Court had ruled that
military litigants have no vested right of appeal against an AFT judgment.
According to the Armed Forces Tribunal Act, 2007, the apex court can only be
approached if a "point of law of general public importance" is involved,
or if the issue is important enough to warrant the attention of the apex court.
If the high court entertains a petition
under Article 226 against the AFT orders bypassing the machinery of statute,
that is Sections 30 and 31 of the AFT Act, there is likelihood of anomalous
situation for the aggrieved person in praying for relief from this court, the
Bench ruled.
Legal Provisions
The crucial sections at issue were Sections
30 and 31, which provided for appeals from the orders of the Tribunal. Section
30 states: “Subject to the provisions of section 31, an appeal shall lie
to the Supreme Court against the final decision or order of the Tribunal
(other than an order passed under section 19).”
Section 31 likewise 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 that Court.”
Sections 30 and 31, therefore, lay down the
procedure for appealing an order of the Armed Forces Tribunal to the Supreme
Court. Parallel to this, Section 33 excludes the jurisdiction of civil courts,
and Section 34 provides the transfer of all pending cases (including cases in
the High Courts) to the Tribunal, after the commencement of the Tribunal.
The question before the Court was whether
Sections 30 and 31 barred the jurisdiction of the High Courts from hearing
petitions (under 226/227) against the orders of the Armed Forces Tribunal. The
Court began by pointing out certain specific provisions of the Constitution.
Under Article 33 of the Constitution, Parliament may modify the
operation of Part III to the armed forces. Article 227(4) of the
Constitution, part of the provision dealing with the superintendence of the
High Courts, provides that “nothing in this article shall be deemed to
confer on a High Court powers of superintendence over any court or tribunal
constituted by or under any law relating to the Armed
Forces.” Article 136(2), part of the provision dealing with special
leave to appeal to the Supreme Court, provides that “nothing in clause (1)
shall apply to any judgment, determination, sentence or order passed or made by
any court or tribunal constituted by or under any law relating to the Armed
Forces.”
At this point, the following argument seems
to be there to be made: admittedly, judicial review under Articles 226 and 227,
and under Article 32, is part of the basic structure of the Constitution. But
the Constitution itself, through various provisions, carves out an
exception in the cases of the armed forces, where the scope of judicial review
is to be regulated by statute (Articles 227(4) and 136(2)). Consequently,
Parliament may, by law, bar the jurisdiction of the High Court to hear appeals
from orders passed by the Armed Forces Tribunal.
Such an argument is open to objection. It
also raises the fascinating question of whether
an original constitutional provision can be unconstitutional because
it violates the basic structure (if judicial review is part of the basic
structure, than how can 227(4) and 136(2) be consistent with that?). The Court,
however, did not make this argument at all. Instead, it first affirmed the
proposition that the Armed Forces Tribunal Act cannot take away the
jurisdiction of the High Court under Articles 226 and 227 (paragraph 25).
The Court then cited a number of precedents
for the proposition that although the jurisdiction of the High Court
could not be taken away by any statute, in deciding whether or not
to exercise its jurisdiction, the High Court must take into account
the legislative intention behind the statute in question. Citing the prior case
of Nivedita Sharma vs Cellular Operators Association of India, the Court
observed that “when a statutory forum is created by law for redressal
of grievances, a writ petition should not be entertained ignoring the
statutory dispensation.” (paragraph 25)
But what was the statutory forum in the
present case? Here is where the judgment becomes somewhat murky. Paragraph 33
of the judgment is preceded by a heading called “Statutory remedy“. Here, the
Court cited the case Union of India vs Brigadier P.S. Singh Gill, and
extracted a lengthy set of paragraph that detailed the appeals procedure under
Sections 30 and 31 of the Armed Forces Tribunal Act. But Sections 30 and 31, as
we saw, provide for an appeal to the Supreme Court. Surely the provision of an
appeal to the Supreme Court cannot be the “alternative statutory
forum” to the jurisdiction of the High Courts!
But then what is the alternative
statutory forum? The only possible answer has to be: the Armed Forces Tribunal
itself. This, indeed, is what the Court implied earlier in the judgment. In
paragraph 14, it stated that: “it is clear from the scheme of the Act
that jurisdiction of the Tribunal constituted under the Armed
Forces Tribunal Act is in substitution of the jurisdiction of
Civil Court and the High Court.“
But there is a serious problem here. And
that is the L. Chandra Kumar judgment. In that case, as is
well-known, a seven-judge bench of the Supreme Court held that Tribunals, as
they were constituted an functioning, could act complementary to the High
Courts, but not as substitutes. This was because:
“The constitutional safeguards which ensure
the independence of the Judges of the superior judiciary, are not available to
the Judges of the subordinate judiciary or to those who man Tribunals created
by ordinary legislations. Consequently, Judges of the latter category can never
be considered full and effective substitutes for the superior judiciary in
discharging the function of constitutional interpretation. We, therefore,
hold that the power of judicial review over legislative action vested in the
High Courts under Articles 226 and in this Court under Article 32 of the
Constitution is an integral and essential feature of the Constitution,
constituting part of its basic structure. Ordinarily, therefore, the power of
High Courts and the Supreme Court to test the constitutional validity of
legislations can never be ousted or excluded.”
This has been a constant position of law.
In its recent judgment, striking down the National Tax Tribunals, the Supreme
Court based its entire analysis on a detailed demonstration of how the
Tribunals lacked the essential qualities of the Courts (judicial
independence etc.), that would allow them to serve as effective substitutes.
The Court’s judgment, therefore, is
question-begging. It takes the existence of the Armed Forces Tribunal
to be evidence of an “alternative statutory forum” that is a
“substitute” for the High Courts. On that basis, it holds that while
the jurisdiction of the High Courts cannot be ousted, it should
not exercise its jurisdiction because of the existence of the
alternative forum.
Comments
Since litigation cannot now be taken before
the Supreme Court as a matter of right, the AFT has become the only court for
military litigants, effectively denying poor soldiers the right of
judicial review. But, in contrast, a seven-judge Supreme Court Bench had deemed
"unconstitutional" a similar ruling that prevented high court review
of rulings of the Central Administrative Tribunal (CAT) and State
Administrative Tribunals (SATs).
A jawan living in Tamil Nadu, or Assam,
would have to engage a Supreme Court lawyer in Delhi, and bear all the expenses
of travel in order to appeal against an AFT ruling.
The AFT was established in 2009 under the
Armed Forces Tribunal Act, 2007, as a judicial tribunal that soldiers petition
for justice before approaching civil courts.
Legal experts have questioned the AFT's
independence, since it functions directly under the Ministry of Defence (MoD).
The MoD appoints the judges to the AFT. The Defence Secretary (who is on the
panel that selects AFT judges) is also the First Respondent in most cases filed
by soldiers, sailors and airmen.
In November 2012, the Punjab & Haryana
High Court ordered that the AFT be placed under the Ministry of Law &
Justice. An MoD appeal against this verdict is pending in the Supreme Court.
There have been reports of the MoD
extending largesse to AFT judges. In a RTI reply, MoD admitted spending over Rs
67 lakhs for "official foreign visits" by the then AFT chairperson
and members, and having provided them with unauthorised canteen cards to shop
at subsidised military retail outlets. AFT Administrative Members (military
generals on the tribunals) are called to army formations to
"sensitise" them about cases that they were hearing.
Legal experts point out that, if High
Courts can no longer hear challenges and provide redress, the Supreme Court
would directly receive a flood of appeals, diverting it from its primary task -
to adjudicate on matters of importance and Constitutional issues.
(With inputs from Maj Navdeep Singh’s
militaryinfo.com blog)
Follow @IMR (https://twitter.com/IMRTweets) handle for comprehensive coverage on other buzzing Defence & Security stories.
