Union of India and Ors. v. Major General Shri Kant
Sharma and anr.[1]
The post is based on a paper selected for
publication in the legal magazine Practical Lawyer.
Few
months ago, the Supreme Court rendered an important verdict with massive
implications for the Writ Jurisdiction of High Courts u/Art 226 and 227 and to
the Basic Structure theory.
A. Issue
before the Court
Whether
the right of appeal
under Section 30 of the Armed Forces Tribunal Act, 2007 against an order of
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 leave 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.
B. Judgment
The Court, firstly, discussed the precedents holding Article 226 and 32 to be
part of the basic structure. Meanwhile, it pointed out that Article 227 and 136
are qualified under Article 136 (2) and 227 (4) and consequently, do not apply to
the armed forces.
Then,
while affirming
that Articles 226 and 32 are part of basic structure and cannot be taken away,
the Court concluded that in many instances the Court (exercising self-
restraint) has imposed certain limitations on powers under/ Article 226, which
is the theory of Alternative Statutory
Remedy. The Court relied on various judgments, mainly Nivedita[2]
case to conclude that the Courts should pay due regard to the intention of
the legislature and when statutory
remedy in form of appeal is provided, then the jurisdiction u/Art 226 would
not be exercised.
C.
Analysis
There are few concerns regarding the
judgment that need to be addressed. Firstly,
it is true that the Nivedita judgment, relied on by the Court,
unequivocally states:
“it is one thing to say that in exercise of
the power vested in it under Article 226 of the Constitution, the High Court
can entertain a writ petition against any order passed by or action taken by
the State and/or its agency/instrumentality or any public authority or order
passed by a quasi-judicial body/authority, and it is an altogether different thing to say that each and every petition
filed under Article 226 of the Constitution must be entertained by the High
Court as a matter of course ignoring the fact that the aggrieved person has an
effective alternative remedy. Rather, it
is settled law that when a statutory forum is created by law for redressal of
grievances, a writ petition should not be entertained ignoring the statutory
dispensation.”
[emphasis mine]
But there
is a difference in cases where alternative Statutory remedy is an appeal before a Tribunal and one where appeal is before the Supreme Court directly.
In Nivedita case, the alternative statutory remedy was appeal from the orders of
the State Consumer Redressal Commission to the National Consumer Redressal
Commission u/s 19 of the Consumer Protection Act 1986, whereas the alternative
statutory remedy is an appeal before the Supreme Court, which basically ousts
the jurisdiction of the High Court, if once the Supreme Court is approached to
by the parties. In L. Chandra Kumar[3]
judgment, the Court noted the necessity of both Article 227 and 226
jurisdictions over the decisions of the Tribunal. It has been the position of
the Supreme Court in L. Chandra Kumar, that Tribunals/ subordinate Courts
constituted by ordinary statutes are not substitutes of the High Court/ Supreme
Court, since the constitutional safeguards enjoyed by HC/SC judges are not
bestowed upon any other judicial authority.[4]
In lieu of this, it is submitted that the Nivedita judgment cannot be applied
in the present, since allowing alternative remedy to the Supreme Court, ousts
the jurisdiction of the High Court u/Art 226, which is part of the Basic
Structure.
Secondly, the part
where the Court deals with “anomalous situations”, it states:
“If any person aggrieved by the order of the
Tribunal, moves before the High Court under Article 226 and the High Court
entertains the petition and passes a judgment or order, the person who may be
aggrieved against both the orders passed by the Armed Forces Tribunal and the
High Court, cannot challenge both the orders in one joint appeal. The aggrieved
person may file leave to appeal under Article 136 of the Constitution against
the judgment passed by the High Court but in view of the bar of jurisdiction by
clause (2) of Article 136, this Court cannot entertain appeal against the order
of the Armed Forces Tribunal...”
But this
does not make any difference since, if the High Court was to exercise its
jurisdiction u/Article 226, then, an appeal u/Art 136 would have laid against
that decision, since Art 136 excludes judgments,
determination, sentence or order passed or made by any court or tribunal constituted by
or under any law relating to the Armed Forces and clearly Article 226
order is not by a Court that is constituted by or under any law relating to the
armed forces.
Lastly, when the Court states that Article 227
is qualified for any court or
tribunal constituted by or under any law relating to the Armed Forces, it
ignores the dictum of L. Chandra Kumar v. UOI, where the Court had specifically
stated:
“the
power vested in the High Courts to exercise judicial superintendence over the
decisions of all Courts and Tribunals within their respective jurisdictions is also part of the basic structure of the
Constitution.”
[emphasis mine]
Though these observations were made in
the case, when the Superintendence of the High Court over the Administrative
was dealt with, still the decision of superintendence power of High Court to be
the part of basic structure is equally applicable to the Armed Forces Tribunal,
which in any case, is still a Tribunal. Arguendo,
(even assuming that the Article 227 (4) was not in the mind of the Court
while deciding L. Chandra Kumar case), still the Court should address the
larger issue that whether even the basic
structure of the Constitution
classifies different legal positions, one for armed forces and other for
commoners and then clarify that whether the power of superintendence extends to
the armed forces tribunal or not (in lieu of Article 227).
While the Court had tried to approached
the problem in a very pragmatic manner and sought to reduce invocation of
Article 226 jurisdiction of the High Court, but, it is submitted that the
reasoning opted by it has various lacunas.
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