No Restriction On HCs To Exercise Power Under Article 226 To Hear Petitions Against AFT Orders, SC Overrules Previous Judgement

The Supreme Court bench comprising Justices SK Kaul, AS Oka and BV Nagarathna recently countermanded a previous ruling of the Supreme Court in the case Union of India v. Major General Shri Kant Sharma where it was held that challenges from the orders of the Armed Forces Tribunals (AFT) cannot be entertained under Article 226 of the Constitution.

The court observed that-

“We see no hesitation in concluding that the judgement in  Union of India v. Major General Shri Kant Sharma does not lay down the correct law and is in conflict with the judgements of the constitution benches rendered later and prior to it, including L. Chandra Kumar , S.N. Mukherhjee and Rojer Mathew case making it abundantly clear that there is no restriction on the exercise of power under Article 226 of the Constitution by the High Court. However, in respect of matters of self discipline, the principles already stand enunciated”.

It has been submitted by the counsel on behalf of the persons serving in armed forces that there can never be a bar to exercise of jurisdiction under Article 226 of the Constitution of India by the High Court. It was further submitted that the exclusion of judicial review under Article 226 of the constitution cannot be acceptable because there is no alternate appeal mechanism. It was submitted that the constitution does not allow any special leave to appeal in the Supreme Court against the order of a court or tribunal relating to the armed forces except when a point of law of general public importance is involved.

The court observed on a reading of Section 30 of the Armed Forces Tribunal Act that the appeal provisions to the Supreme Court is under the scrutiny of Section 31 of the Act which would be by the leave of AFT but this leave is not granted unless there is a question of general public importance involved. Hence the court noted that the appeal mechanism is restrictive in nature.

In the matter at hand an embargo was sought from the High Court exercising jurisdiction under Article 226 of the constitution in the following cases:

i) All cases related to Courts of Inquiry, Court(s) Martial, and Discipline;

ii) All cases related to pension and other retirement benefits, tenure, promotion, retirement, administrative termination of service, such as in cases involving moral turpitude, and leave;

iii) Matters pertaining to the Official Secrets Act; and

iv) Cases relating to espionage/sabotage.

The bench observed that the principles of basic structure have withstood the test of time and are emphasized in many judicial pronouncements as an ultimate test and this cannot be doubted.the court further noted that this being the position, the self restraint of High Court under Article 226 of the constitution is distinct from putting an embargo on the High Court in exercising the jurisdiction under Article 226 of the constitution while judicially reviewing AFT’s decision.

Hence, the bench held that  there is no restriction on the exercise of power under Article 226 of the Constitution by the High Court.

CASE:UNION OF INDIA V. PARASHOTAM DAS

CIVIL APPEAL VO.447 OF 2023