The Supreme Court overturned its ruling in Union of India and Others v. Major General Shri Kant Sharma and Others, which said the Armed Forces Tribunal’s orders could not be challenged under Article 226 of India’s Constitution.
Section 30 of the Armed Forces Tribunal Act 2007
Whether the right of appeal under Section 30 of the Armed Forces Tribunal Act, 2007 against an order of the Armed Forces Tribunal with the leave of the Tribunal under Section 31 of the Act or leave granted by the Supreme Court, or bar of exit to appeal before the Supreme Court under Article 136(2) of the Constitution of India, will bar the jurisdiction of the High Court under Article 226 of the Constitution of India regarding matters related to Armed Forces?
“A bench composed of Justices SK Kaul, AS Oka, and BV Nagarathna observed that the decision of Major General Shri Kant Sharma and Others had weakened the provisions of judicial review, which form the Constitution’s foundation.
Moreover, it was determined that the decision in Major General Shri Kant Sharma is contrary to the findings in L Chandra Kumar v. Union of India and Rojer Mathew v. South Indian Bank Ltd. And Ors., which held that Article 226 of the Constitution imposes no restrictions on the exercise of power per se.
The more significant issue before the bench was whether the orders issued by the Armed Forces Tribunal established under the Armed Forces Tribunal Act of 2007 could be challenged before the High Court under Article 226 of the Indian Constitution.
It was noted that when the concept of tribunalisation was upheld in L Chandra Kumar v. Union of India, the Court had opined unequivocally that the orders issued by the Tribunals would be subject to the High Court’s jurisdiction under Article 226.
“To deny the High Court the ability to correct any error made by the Armed Forces Tribunal, even when exercising jurisdiction under Article 226, would be contrary to the constitutional scheme,” the court stated.
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It added that the High Court’s judicial oversight would not be denied –
“In administrative jurisprudence, at least two independent judicial examinations should not be denied, according to our opinion. A judge on the High Court has vast experience. In any exercise of jurisdiction under Article 226, the High Courts are well aware of the scope and nature of their jurisdiction, which depends on the nature of the case.”
Placing reliance on the Constitution Bench’s decision in SN Mukherjee v. Union of India, the Bench noted that even with regard to courts-martial, the High Court could grant appropriate relief under certain circumstances, such as if the proceedings resulted in a denial of fundamental rights or if there was a jurisdictional error or an obvious error in the record itself. The Court stated that it could not hold contrary to the principle articulated by the Constitution Bench or carve out exceptions to the same.
The Bench emphasized that concerns that the High Court would re-evaluate the evidence can be put to rest because the High Courts are aware of the parameters for exercising their jurisdiction and are governed by the principles established by the Supreme Court. Moreover, it added –
Case details
Union of India And Ors. v. Parashotam Dass| 2023 LiveLaw (SC) 224 |Civil Appeal No. 447 of 2023| 21st March 2013| Justice Sanjay Kishan Kaul, Justice Abhay S. Oka, and Justice BV Nagarathna
Constitution of India – Article 226- Writ petitions challenging orders of Armed Forces Tribunal are maintainable- To deny the High Court to correct any error which the Armed Forces Tribunal may fall into, even in exercising jurisdiction under Article 226, would be against the constitutional scheme- Overrules Union of India And Ors. v. Major General Shri Kant Sharma And Anr (2015) 6 SCC 77
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