High Courts have power of judicial review under Article 226 over judgments of Armed Forces Tribunal: Delhi High Court

The Delhi High Court has held that High Courts have the power of judicial review over the orders and judgments of Armed Forces Tribunals [Wing Commander Shyam Naithani v Union of India and Ors]..A Division Bench of Justices Manmohan and Navin Chawla stated that the Armed Forces Tribunal Act excludes administrative supervision of the High Courts under Article 227(4) of the Constitution, but not judicial superintendence and certainly not jurisdiction under Article 226.“The argument that in view of Article 227(4) of the Constitution, the High Court has no power of judicial superintendence over the Armed Forces Tribunal is untenable as Article 227(4) only takes away the administrative superintendence of Courts over the Tribunal relating to armed forces. In, L.Chandra Kumar (supra) and Rojer Mathew (supra), it has been categorically held by the Supreme Court that the power of judicial superintendence has not and can never be taken away. Consequently, the power of judicial review under Articles 226 and 227 of the Constitution vests with the High Court even with regard to judgments and orders passed by the Armed Forces Tribunal and this power is a part of the basic structure of the Constitution as has been held in L.Chandra Kumar and Rojer Mathew,” the Court said. .The Court was dealing with a batch of petitions challenging the orders of the Armed Forces Tribunal.A preliminary objection was raised by the Central government that in view of the decision in Union of India and Ors. vs. Maj. Gen. Shri Kant Sharma and Anr., the power of judicial review has been totally taken away from the High Courts, and the litigants do not have the right to approach them against orders of Armed Forces Tribunals.Counsel for the Central government argued that in the above-mentioned case, the Supreme Court held that High Courts should not entertain a writ petition against judgments of the Armed Forces Tribunals, as the parties have an alternate remedy of filing an appeal before the Supreme Court.It was submitted that while the judgment has been referred to a larger Bench but no order of interim stay on the same had been passed and, therefore, till the question of law is decided, it remains precedent. Article 33 of the Constitution provides that the parliament can, by law, determine to what extent the rights conferred under Part IV of the Constitution applies to people of the armed forces, it was highlighted..The High Court, however, held that the power of judicial review under Articles 226 and 227 of the Constitution is a part of its basic structure and Section 14 of the Armed Forces Tribunals Act itself preserves the writ jurisdiction of High Courts.It said that in Roger Mathew, a Constitution Bench of the apex court had observed that writ jurisdiction of High Courts over the Armed Forces Tribunal cannot be restricted, tampered with or diluted or circumscribed by the provision of any enactment.Citing the Balkrishna Ram judgment, the judges said that the top court had observed that the writ jurisdiction of High Courts over tribunals cannot even be taken away by legislative or constitutional amendments.“This Court finds that Section 14 of the Armed Forces Tribunal Act, 2007 itself explicitly stipulates that though the Tribunal has wide powers, yet it does not exercise the power of the Supreme Court or the High Court under Articles 226 and 227 of the Constitution of India. Consequently, the Armed Forces Tribunal Act, 2007 itself preserves the writ jurisdiction of the High Courts,” the High Court ruled. .The Bench in the present case stated that Article 33 does not restrict or curtail the rights of persons in uniform to file a writ petition. It said that while enacting the Army Act, the Air Force Act and the Navy Act, Parliament only prohibited the members of the armed forces from taking part in political and non-military activities.The Bench held that neither Section 30 nor Section 31 of the Armed Forces Tribunal Act constitutes an alternative effective remedy in all cases, and the Supreme Court also held that it will exercise jurisdiction under these Sections only when substantial questions of law of general public importance are involved.“The jurisdiction of High Court under Articles 226 and 227 of the Constitution cannot be bypassed merely by making a provision for direct appeal to the Supreme Court against an order of a Tribunal for the reason that the Apex Court exercises jurisdiction under Sections 30 and 31 of the Armed Forces Tribunal Act, 2007 only if a point of law of general public importance is involved,” the Court held..The High Court clarified that its role as a writ court is vastly different and distinct from an appellate court.A writ court while examining the judgment/order by the tribunal will exercise the power of judicial review meaning that it shall examine the decision-making process and interfere only for correcting errors of jurisdiction or errors apparent on the face of record, or if the Tribunal acted illegally, the judges emphasised. “This Court would like to emphasise, with all the power that it commands, that judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined. Further, the writ jurisdiction of High Court cannot be exercised 'in the cloak of an appeal in disguise',” the judgment said. .It, therefore, rejected the preliminary objections raised by the Central government and listed the batch of matters before a roster Bench..Advocates Ankur Chhibber, HS Tiwari, Anshuman Mehrotra, Harsh Dhankar, Nikunj Arora, Varun Singh, Akshay Dev, Alankriti Dwivedi, S.M. Dalal, Rajiv Manglik, Randhir Singh Kalkal, Naveen R.Nath, Rahul Jain, PK Dhaka, Manoj Kumar Gupta, Deepak Bansal, Girindra Kumar Pathak and Manoj Kumar Gupta appeared for the petitioners.The respondents were represented by advocates Vikram Jetly, Jatin Puniyani, Harish Vaidyanathan Shankar, Syed Husain Adil Taqvi, S Bushra Kazim, Karan Chhibber, Suparna Srivastava, Tushar Mathur, Soumya Singh, Virender Pratap Singh Charak, Shubhra Parashar, Pushpender Singh Charak, Kapil Gaur, Vaishnav Kirti Singh, Shubham Ahujam, Sanjay Singh Chauhan, Ram Pal Singh Tomar, Gyanwardhan Singh, Inderdeep Singh, Vivek Nagar, GD Shanna, Shoumendra Mukharjee, Dev P Bhardwaj, Mohit Bhardwaj, Rajesh Kumar Das, Anshuman, Abhishek Singh and Amrita Prakash..[Read Judgment]