UNION OF INDIA & ORS. Vs. MAJOR GENERAL SHRI KANT SHARMA & ANR.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 7400 of 2013, Judgment Date: Mar 11, 2015
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7400 OF 2013
UNION OF INDIA & ORS. ... APPELLANTS
VERSUS
MAJOR GENERAL SHRI KANT SHARMA & ANR. ... RESPONDENTS
WITH
CIVIL APPEAL NO.7338 OF 2013,
CIVIL APPEAL NOS.7375-7376 OF 2013,
CIVIL APPEAL NO.7399 OF 2013,
CIVIL APPEAL NO.9388 OF 2013,
CIVIL APPEAL NO.9389 OF 2013 AND
CIVIL APPEAL NO.96 OF 2014.
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J
In these appeals the question raised is whether the right of appeal
under Section 30 of the Armed Forces Tribunal Act, 2007 (hereinafter
referred to as the 'ct'), against an order of Armed Forces Tribunal
(hereinafter referred to as the '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.
Union of India and others are the appellants in all these appeals except
in C.A.No.7338, C.A.No. 7399 of 2013 and C.A.No.96/2014 wherein they are
the respondents. The respondents in all these appeals except the three
mentioned above are-Army Personnel who moved before the Tribunal for
adjudication or trial of disputes and complaints with respect to condition
of service. Having not granted relief, the Army personnel assailed the
order passed by the Tribunal before the respective High Courts under
Article 226 of the Constitution. The appellant in C.A.No.7338 of 2013 on
being aggrieved by the order passed by the Armed Forces Tribunal, Regional
Bench, Chennai challenged the same before the High Court of Judicature of
Andhra Pradesh at Hyderabad. In the cases in hand except C.A.No.7338 of
2013 and C.A.No.96 of 2014 the High Court entertained the writ petitions
and adjudicated the disputes. The High Court having granted relief after
reversing the order of Tribunal, the Union of India has challenged the
same. In C.A.No.7338 of 2013 and C.A.No.96 of 2014, the appellants-Army
Personnel have challenged the orders by which High Courts refused to
entertain their writ petitions. In C.A. No. 7399 of 2013, the appellant-
Army Personnel has challenged the order of Delhi High Court allowing the
writ petition of respondent No.2 therein.
2. At the outset, in all the writ petitions preliminary objection was
raised on behalf of the Union of India as to the maintainability of the
writ petition on the ground that against the orders impugned a remedy of
appeal to the Supreme Court is provided under Section 30 of the Armed
Forces Tribunal Act, 2007.
3. Learned counsel appearing on behalf of the Union of India submitted
that the High Court cannot entertain writ petitions under Article 226 of
the Constitution of India contrary to the law enacted by the Parliament
being the Armed Forces Tribunal, 2007 which is a special enactment
exclusively provided for an appellate remedy by way of leave before this
Court.
Further, according to learned counsel for the Union of India as none
of the respondents raised any issue of jurisdiction of the Tribunal and it
was essentially a challenge to the order of the Armed Forces Tribunal only
on merits. Therefore, the High Court was not correct in entertaining the
writ petitions under Article 226 of the Constitution against the well
considered and reasoned order passed by the Tribunal.
4. Col. A.D. Nargolkar appeared in person made the following
submissions:
(i) The power of judicial review under Article 226 and 227 of the
Constitution is an inviolable part of its basic structures. This power
cannot be ousted by an Act of Parliament i.e. the Armed Forces Tribunal
Act, 2007.
(ii) Section 14 of the Act itself provides for judicial review by
the High Court under Article 226 and 227 of the Constitution. There exists
clear and recorded legislative intent behind the specific provisions.
(iii) Article 227(4) of the Constitution does not exclude the
jurisdiction of the High Court over the Armed Forces Tribunal as no such
Tribunal existed when Article 227(4) of the Constitution was substituted.
Similar submissions were made by the learned Senior Counsel for the
respondent-Army Personnel.
5. For the determination of the present issue it is necessary to refer
the relevant provisions of the Armed Forces Tribunal Act, 2007, the power
of the High Court under Sections 226 and 227 of the Constitution, and the
power of Supreme Court under Articles 32 and 136 of the Constitution.
6. The Armed Forces Tribunal Act, 2007 has been enacted to provide for
adjudication or trial by Armed Forces Tribunal of disputes and complaints
with respect to commission, appointments, enrolment and conditions of
service in respect of persons subject to the Army Act, 1950, the Navy Act,
1957 and the Air Force At, 1950 and also to provide for appeals arising out
of orders, findings or sentences of Courts-Martial held under the said Acts
and for matters connected therewith or incidental thereto.
7. As per Section 14 of the Act, the Armed Forces Tribunal has been
established by the Central Government to exercise the jurisdiction, powers
and authority conferred on it by the said Act. Section 14 specifies the
jurisdiction, powers and authority of the Tribunal in relation to service
matters as follows:
"Section 14. Jurisdiction, powers and authority in service matters.- (1)
Save as otherwise expressly provided in this Act, the Tribunal shall
exercise, on and from the appointed day, all the jurisdiction, powers and
authority, exercisable immediately before that day by all courts (except
the Supreme Court or a High Court exercising jurisdiction under articles
226 and 227 of the Constitution) in relation to all service matters.
(2) Subject to the other provisions of this Act, a person aggrieved by an
order pertaining to any service matter may make an application to the
Tribunal in such form and accompanied by such documents or other evidence
and on payment of such fee as may be prescribed.
(3) On receipt of an application relating to service matters, the Tribunal
shall, if satisfied after due inquiry, as it may deem necessary, that it is
fit for adjudication by it, admit such application; but where the Tribunal
is not so satisfied, it may dismiss the application after recording its
reasons in writing.
(4) For the purpose of adjudicating an application, the Tribunal shall have
the same powers as are vested in a Civil Court under the Code of Civil
Procedure, 1908, (5 of 1908) while trying a suit in respect of the
following matters, namely-
summoning and enforcing the attendance of any person and examining him
on oath;
requiring the discovery and production of documents;
receiving evidence on affidavits;
subject to the provisions of sections 123 and 124 of the Indian Evidence
Act, 1872, (1 of 1872) requisitioning any public record or document or copy
of such record or document from any office;
issuing commissions for the examination of witnesses or documents;
reviewing its decisions;
dismissing an application for default or deciding it exparte;
setting aside any order of dismissal of any application for default or any
order passed by it exparte; and
any other matter which may be prescribed by the Central Government.
(5) The Tribunal shall decide both questions of law and facts that may be
raised before it."
It is clear that in relation to service matters the Tribunal has been
empowered to exercise the jurisdiction, powers and authority, exercisable
by all the Courts except the power of Supreme Court or a High Court
exercising jurisdiction under Section 226 and 227 of the Constitution.
8. Section 15 specifies the jurisdiction, powers and authority to be
exercised by the Tribunal relating to matters of appeal against the Court-
Martial. The said Section reads as fellows:
"Section 15. Jurisdiction, powers and authority in matters of appeal
against court-martial.-(1) Save as otherwise expressly provided in this
Act, the Tribunal shall exercise, on and from the appointed day, all the
jurisdiction, powers and authority exercisable under this Act in relation
to appeal against any order, decision, finding or sentence passed by a
court martial or any matter connected therewith or incidental therto.
(2) Any person aggrieved by an order, decision, finding or sentence passed
by a court martial may prefer an appeal in such form, manner and within
such time as may be prescribed.
(3) The Tribunal shall have power to grant bail to any person accused of an
offence and in military custody, with or without any conditions which it
considers necessary:
Provided that no accused person shall be so released if there appears
reasonable ground for believing that he has been guilty of an offence
punishable with death or imprisonment for life.
(4) The Tribunal shall allow an appeal against conviction by a court
martial where -
the finding of the court martial is legally not sustainable due to any
reason whatsoever; or
the finding involves wrong decision on a question of law; or
there was a material irregularity in the course of the trial resulting in
miscarriage of justice,
but, in any other case, may dismiss the appeal where the Tribunal considers
that no miscarriage of justice is likely to be caused or has actually
resulted to the appellant:
Provided that no order dismissing the appeal by the Tribunal shall be
passed unless such order is made after recording reasons therefor in
writing.
(5) The Tribunal may allow an appeal against conviction, and pass
appropriate order thereon.
(6) Notwithstanding anything contained in the foregoing provisions of this
section, the Tribunal shall have the power to-
substitute for the findings of the court martial, a finding of guilty for
any other offence for which the offender could have been lawfully found
guilty by the court martial and pass a sentence afresh for the offence
specified or involved in such findings under the provisions of the Army
Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957) or the Air Force
Act, 1950, (45 of 1950) as the case may be; or
if sentence is found to be excessive, illegal or unjust, the Tribunal may-
remit the whole or any part of the sentence, with or without conditions;
(ii) mitigate the punishment awarded;
(iii) commute such punishment to any lesser punishment or punishments
mentioned in the Army Act, 1950, (46 of 1950) the Navy Act, 1957 (62 of
1957) and the Air Force Act, 1950, (45 of 1950) as the case may be;
enhance the sentence awarded by a court -martial:
Provided that no such sentence shall be enhanced unless the appellant has
been given an opportunity of being heard;
(d) release the appellant, if sentenced to imprisonment, on parole with
or without conditions;
suspend a sentence of imprisonment;
pass any other order as it may think appropriate.
(7) Notwithstanding any other provisions in this Act, for the purposes of
this section, the Tribunal shall be deemed to be a criminal court for the
purposes of sections 175, 178, 179, 180, 193, 195, 196 or 228 (45 of 1860)
of the Indian Penal Code and Chapter XXVI of the Code of Criminal
Procedure, 1973. (2 of 1974)."
Sub-section (2) of Section 15 specifies the right of any person to
prefer an appeal against order, decision, finding or sentence passed by a
Court-Martial.
9. Chapter V of the Act relates to appeal. Section 30 which provides for
an appeal to the Supreme Court and Section 31 deals with leave to appeal.
The said Sections read as under:
"Section 30. Appeal to Supreme Court :-(1) 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):
Provided that such appeal is preferred within a period of ninety days of
the said decision or order:
Provided further that there shall be no appeal against an interlocutory
order of the Tribunal.
(2) An appeal shall lie to the Supreme Court as of right from any order or
decision of the Tribunal in the exercise of its jurisdiction to punish for
contempt: .
Provided that an appeal under this sub-section shall be filed in the
Supreme Court within sixty days from the date of the order appealed
against.
(3) Pending any appeal under sub-section (2), the Supreme Court may order
that-
the execution of the punishment or the order appealed against be suspended;
or
if the appellant is in confinement, he be released on bail:
Provided that where an appellant satisfies the Tribunal that he intends to
prefer an appeal, the Tribunal may also exercise any of the powers
conferred under clause (a) or clause (b), as the case may be.
Section 31. Leave to appeal.- (1) 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.
(2) An application to the Tribunal for leave to appeal to the Supreme Court
shall be made within a period of thirty days beginning with the date of the
decision of the Tribunal and an application to the Supreme Court for leave
shall be made within a period of thirty days beginning with the date on
which the application for leave is refused by the Tribunal.
(3) An appeal shall be treated as pending until any application for leave
to appeal is disposed of and if leave to appeal is granted, until the
appeal is disposed of; and an application for leave to appeal shall be
treated as disposed of at the expiration of the time within which it might
have been made, but it is not made within that time."
10. Section 32 empowers the Supreme Court to condone the delay i.e. to
extend the time within which an appeal may be preferred by the person to
the Court under Section 30 or sub-section (2) or Section 31. The said
Section reads as follows:
"Section 32.Condonation.- The Supreme Court may, upon an application made
at any time by the appellant, extend the time within which an appeal may be
preferred by him to that Court under section 30 or sub-section (2) of
section 31."
11. Section 33 excludes the jurisdiction of Civil Courts. Section 34
deals with transfer of pending cases before any court including a High
Court or other authority immediately before the date of establishment of
the Tribunal, the cause of action of which would have been within the
jurisdiction of Tribunal. Sections 33 and 34 read as under:
"Section 33. Exclusion of jurisdiction of civil courts.- On and from
the date from which any jurisdiction, powers and authority becomes
exercisable by the Tribunal in relation-to service matters under this Act,
no Civil Court shall have, or be entitled to exercise, such jurisdiction,
power or authority in relation to those service matters.
34. Transfer of pending cases.- (1) Every suit, or other proceeding pending
before any court including a High Court or other authority immediately
before the date of establishment of the Tribunal under this Act, being a
suit or proceeding the cause of action whereon it is based, is such that it
would have been within the jurisdiction of the Tribunal, if it had arisen
after such establishment within the jurisdiction of such Tribunal, stand
transferred on that date to such Tribunal.
(2) Where any suit, or other proceeding stands transferred from any court
including a High Court or other authority to the Tribunal under sub-section
(1),-
the court or other authority shall, as soon as may be, after such transfer,
forward the records of such suit, or other proceeding to the Tribunal;
the Tribunal may, on receipt of such records, proceed to deal with such
suit, or other proceeding, so far as may be, in the same' manner as in the
case of an application made under sub-section (2) of section 14, from the
stage which was reached before such transfer or from any earlier stage or
de novo as the Tribunal may deem fit."
12. A plain reading of the above provisions shows:
A remedy of appeal to Supreme Court against any final order passed by
the Tribunal under Section 30 with the leave of the Tribunal is provided
under Section 31 of the Act.
In case leave is refused by the Tribunal, an application to the Supreme
Court for leave can be made as provided under sub-section (1) and (2) of
Section 31 of the Act.
Against any order or decision of the Tribunal made under Section 19 in
exercise of its jurisdiction to punish for contempt, an appeal under sub-
section (2) of Section 30 lies to the Supreme Court as of right.
Section 33 excludes the jurisdiction of the Civil Courts and not the High
Court under Article 226 and 227. However, Section 34 relates to transfer of
pending cases, suits and cases pending in other courts including the High
Court. The suit pending before any Court or High Court may stand
transferred if the cause of action comes under the jurisdiction of the Arms
Forces Tribunal Act but it does not affect the power of the High Court
under Section 226 and 227 of the Constitution.
13. The Parliamentary 10th Standing Committee for Defence in May, 2006
deliberated on the proposed Section 30 and 31 of the Act. Chapter XIV of
the recorded deliberations provides insight into the legislative intent and
replies/advice of the Law Ministry, relevant portion of which is reproduced
below:
"CHAPTER XIV
CLAUSE 30 : JURISDICTION OF TRIBUNAL AND HIGH COURT IN MATTERS
RELATING TO APPEAL
84. Clause 30 provides:-
1. Subject to the provision 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):
Provided that such appeal is preferred within a period of ninety days of
the said decision or order.
Provided further that there shall be no appeal against an interlocutory
order of the Tribunal.
2. An appeal shall lie to the Supreme Court as of right from any order or
decisions of the Tribunal in the exercise of its jurisdiction to punish for
contempt.
Provided that an appeal under this sub-section shall be filed in the
Supreme Court within sixty days from the date of the order appealed
against.
3. Pending any appeal under sub-section (2), the Supreme Court may order
that:-
(a) the execution of the punishment or the order appealed against be
suspended;
(b) if the appellant is in confinement, he be released on bail;
Provided that where an appellant satisfies the Tribunal that he intends to
prefer an appeal, the Tribunal may also exercise any of the powers
conferred under clause (a) or clause (b), as the case may be.
85. The Committee enquired about the nature of the proposed Tribunal,
whether it would be a judicial, quasi judicial body in the line of Central
Administrative Tribunal, the Ministry replied:-
"Since the Armed Forces Tribunal would be dealing with offences,legally
awardable punishments and termination of service etc. and the Tribunal is
being armed with the powers of contempt, it would be a judicial body. It
would be a permanent Tribunal and a Court of record."
86. When Committee asked, whether appeal would be preferred in High Courts
or Supreme Court, the Ministry stated:
"Clause 30 of the Armed Forces Tribunal Bill, 2005 provides that an appeal
against the final decision or order of Armed Forces Tribunal shall lie to
the Supreme Court. Under the Constitution, the power of superintendence of
High Court is already excluded against a Court Martial verdict."
87. On a specific query to the representatives of the Ministry of Law &
Justice, on the issue of appeal against the order of the Tribunal, they
stated:-
"In a case, L. Chandrakumar's case, which was relating to the Central
Administrative Tribunal, which was established by an Act of Parliament,
similar provisions were there where an appeal against the orders of the
Central Administrative Tribunal was preferred to the Supreme Court but for
some time it was entertained by the Supreme Court. But later on,
subsequently in L. Chandrakumar's case, the Supreme Court said that the
powers of the High Court under articles 226 and 227 cannot be taken away by
an Act of Parliament. Thus, you know again from the orders of Central
Administrative Tribunal, we have started preferring appeals to the High
Court under article 226."
88. They further supplemented:
"It is not only in one case but also subsequently in a number of cases, the
Supreme Court reiterated that principle. Many High Courts have reiterated
that principle. When in another Bill, that is, National Tax Tribunal was
being processed in this Committee Room by another Committee, there also
many hon. Members of the Standing Committee said that in view of L.
Chandrakumar's case, you cannot have a touch tribunal from which you can
directly go to the Supreme Court and we had accede that before that
Committee tha article 226 is still there with the High Court. The minute
you abolish article 226, then it will be treated by the Supreme Court as a
violation of the essential characteristics of the basic structure of the
Constitution, which is a limitation even on the power of Parliament to
amend the Constitution."
89. When the Committee asked the Ministry of Law & Justice regarding
possible solution of it, they stated that:
"We have processed the Bill. In the Bill we have taken the precaution that
the Chairman of the Tribunal should be a retired judge or a sitting judge
of the Supreme Court. If the Chairman of the Tribunal himself is a Supreme
Court judge, then you know the High Courts are slightly hesitant in
interfering with the judgment.
That is only thing but if a judge finds that there is a Constitutional
violation of certain fundamental rights or there is a gross arbitrariness
in an order of the Tribunal, then it will exercise its jurisdiction under
article 226."
In this connection, the Ministry of Defence in a written note stated:
"The proposed Armed Forces Tribunal Bill, 2005 does not envisage a
situation where an accused can approach the High Court in an appeal against
the order of the Tribunal. There can be no equation between the High Court
and any other Tribunal. On the other hand, analogy can be drawn between the
CAT and the proposed Armed Forces Tribunal. In CAT, single member also
constitutes a Bench [section 5(6)]. However, in the Armed Forces Tribunal,
the minimum number of members to constitute a Bench is two. Further, as
opposed to the CAT where the Chairperson is a serving or retired High Court
judge, the Chairperson of the Armed Forces Tribunal is a retired Supreme
Court Judge or retired Chief Justice of the High Court. Further Article
227(iv) of the Constitution excludes the power of superintendence of High
Courts over any court or Tribunal constituted by or under any law relating
to the Armed Forces. Therefore, an accused cannot go to the High Court in
appeal against the order of the Armed Forces Tribunal."
90. The Committee note that clause 30 provides that subject to provisions
of section 31, an appeal shall lie to Supreme Court against the final
decision or order of the Tribunal. The Committee, however, are given to
understand that in the case of L. Chanderkumar, where appeal against the
order of the Central Administrative Tribunal was preferred to Supreme
Court, the Court stated that powers of the High Court under Articles 226
and 227 cannot be taken away by an Act of Parliament. The Committee are of
the view that the appeal against the Tribunal should be preferred as per
the provisions of the Constitution.
NEW DELHI; BALASAHEB VIKHE PATIL,
16 May, 2006 Chairman,
26 Vaisakha, 1928 (Saka)Standing Committee on Defence."
14. Therefore, 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 so far
as it relates to suit relating to condition of service of the persons
subject to Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950,
which are special laws enacted by the Parliament by virtue of exclusive
legislative power vested under Article 246 of the Constitution of India
read with Entries 1 & 2 of List I of the Seventh Schedule.
15. Constitution of India
In this context, it is also necessary to notice Articles 32 and 33 of the
Constitution. Article 32 falls under Chapter III of the Constitution which
deals with fundamental right. The said article guarantees the right to
move before the Supreme Court by appropriate proceedings for the
enforcement of the fundamental rights conferred by the Part III. Article
32 reads as follows:
"Article 32. Remedies for enforcement of rights conferred by this Part.-(1)
The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or
writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, whichever may be appropriate, for
the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by
clauses (1) and (2), Parliament may by law empower any other court to
exercise within the local limits of its jurisdiction all or any of the
powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as
otherwise provided for by this Constitution."
16. Article 33 empowers the Parliament to restrict or abrogate the
application of fundamental rights in relation to Armed Forces, Para
Military Forces, the Police etc. (refer: Ous Kutilingal Achudan Nair
vs.Union of India, (1976) 2 SCC 780). The said article reads as follows:
"Article 33. Power of Parliament to modify the rights conferred by this
Part in their application to Forces, etc.-Parliament may, by law, determine
to what extent any of the rights conferred by this Part shall, in their
application to,-
(a) the members of the Armed Forces; or
(b) the members of the Forces charged with the maintenance of public
order; or
(c) persons employed in any bureau or other organisation established by
the State for purposes of intelligence or counter intelligence; or
(d) person employed in, or in connection with, the telecommunication
systems set up for the purposes of any Force, bureau or organisation
referred to in clauses (a) to (c),
be restricted or abrogated so as to ensure the proper discharge of their
duties and the maintenance of discipline among them."
17. Article 226 empowers High Court to issue prerogative writs. The said
Article reads as under:
"Article 226.Power of High Courts to issue certain writs.- (1)
Notwithstanding anything in article 32 every High Court shall have power,
throughout the territories in relation to which it exercises jurisdiction,
toissue to any person or authority, including in appropriate cases, any
Government, within those territories directions, orders or writs, including
1[writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, or any of them, for the enforcement of any of the rights
conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs
to any Government, authority or person may also be exercised by any High
Court exercising jurisdiction in relation to the territories within which
the cause of action, wholly or in part, arises for the exercise of such
power, notwithstanding that the seat of such Government or authority or the
residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of
injunction or stay or in any other manner, is made on, or in any
proceedings relating to, a petition under clause (1), without-
furnishing to such party copies of such petition and all documents in
support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application
to the High Court for the vacation of such order and furnishes a copy of
such application to the party in whose favour such order has been made or
the counsel of such party, the High Court shall dispose of the application
within a period of two weeks from the date on which it is received or from
the date on which the copy of such application is so furnished, whichever
is later, or where the High Court is closed on the last day of that period,
before the expiry of the next day afterwards on which the High Court is
open; and if the application is not so disposed of, the interim order
shall, on the expiry of that period, or, as the case may be, the expiry of
the said next day, stand vacated.
(4) The power conferred on a High Court by this article shall not be in
derogation of the power conferred on the Supreme Court by clause (2) of
article 32."
18. Article 227 relates to power of superintendence of High Courts over
all Courts and Tribunals. It reads as follows:
"Article 227. Power of superintendence over all courts by the High Court.-
(1) Every High Court shall have superintendence over all courts and
tribunals throughout the territories in relation to which it exercises
jurisdiction.
(2) Without prejudice to the generality of the
foregoing provision, the High Court may-
call for returns from such courts;
make and issue general rules and prescribe forms for regulating the
practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and
accounts shall be kept by the officers of any such courts.
(3) The High Court may also settle tables of fees to be allowed to the
sheriff and all clerks and officers of such courts and to attorneys,
advocates and pleaders practising therein:
Provided that any rules made, forms prescribed or tables settled under
clause (2) or clause (3) shall not be inconsistent with the provision of
any law for the time being in force, and shall require the previous
approval of the Governor.
(4) 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."
19. In this context, it is also necessary to notice Article 136 of the
Constitution which provides special leave to appeal to Supreme Court:
"136.Special leave to appeal by the Supreme Court.-(1)
Notwithstanding anything in this Chapter, the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of India.
(2) 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."
In view of clause (2) of Article 136 which expressly excludes the
judgments or orders passed by any Court or Tribunal constituted by or under
any law relating to Armed Forces, the aggrieved persons cannot seek leave
under Article 136 of Constitution of India; to appeal from such judgment or
order. But right to appeal is available under Section 30 with leave to
appeal under Section 31 of the Armed Forces Tribunal Act, 2007.
20. We may also refer to Article 227(4) of the Constitution, which reads
as under:
"Article 227(4) 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."
Thus, we find that there is a constitutional bar not only under
Article 136(2) but also under Article 227(4) of the Constitution of India
with regard to entertaining any determination or order passed by any court
or Tribunal under law relating to Armed Forces.
21. Judicial review under Article 32 and 226 is a basic feature of the
Constitution beyond the plea of amendability. While under Article 32 of the
Constitution a person has a right to move before Supreme Court by
appropriate proceedings for enforcement of the rights conferred by Part III
of the Constitution, no fundament right can be claimed by any person to
move before the High Court by appropriate proceedings under Article 226 for
enforcement of the rights conferred by the Constitution or Statute.
22. In L. Chandra kumar vs. Union of India, (1997)3 SCC 261 a Bench of
seven-Judge while dealing with the essential and basic features of
Constitution - power of review and jurisdiction conferred on the High Court
under Article 226/227 and on the Supreme Court under Article 32 held as
follows:
"75. In Keshav Singh, (1965) 1 SCR 413 while addressing this issue,
Gajendragadkar, C.J. stated as follows: (SCC at pp. 493-494)
"If the power of the High Courts under Article 226 and the authority of
this Court under Article 32 are not subject to any exceptions, then it
would be futile to contend that a citizen cannot move the High Courts or
this Court to invoke their jurisdiction even in cases where his fundamental
rights have been violated. The existence of judicial power in that behalf
must necessarily and inevitably postulate the existence of a right in the
citizen to move the Court in that behalf; otherwise the power conferred on
the High Courts and this Court would be rendered virtually meaningless. Let
it not be forgotten that the judicial power conferred on the High Courts
and this Court is meant for the protection of the citizens' fundamental
rights, and so, in the existence of the said judicial power itself is
necessarily involved the right of the citizen to appeal to the said power
in a proper case."
(emphasis added)
76. To express our opinion on the issue whether the power of judicial
review vested in the High Courts and in the Supreme Court under Articles
226/227 and 32 is part of the basic structure of the Constitution, we must
first attempt to understand what constitutes the basic structure of the
Constitution. The doctrine of basic structure was evolved in Kesavananda
Bharati case (1993 4 SCC 225). However, as already mentioned, that case did
not lay down that the specific and particular features mentioned in that
judgment alone would constitute the basic structure of our Constitution.
Indeed, in the judgments of Shelat and Grover, JJ., Hegde and Mukherjea,
JJ. and Jaganmohan Reddy, J., there are specific observations to the effect
that their list of essential features comprising the basic structure of the
Constitution are illustrative and are not intended to be exhaustive. In
Indira Gandhi case, (1975 Supp SCC 1), Chandrachud, J. held that the proper
approach for a Judge who is confronted with the question whether a
particular facet of the Constitution is part of the basic structure, is to
examine, in each individual case, the place of the particular feature in
the scheme of our Constitution, its object and purpose, and the
consequences of its denial on the integrity of our Constitution as a
fundamental instrument for the governance of the country. (supra at pp. 751-
752). This approach was specifically adopted by Bhagwati, J. in Minerva
Mills case [(1980) 3 SCC 625] (at pp. 671-672) and is not regarded as the
definitive test in this field of Constitutional Law.
77. We find that the various factors mentioned in the test evolved by
Chandrachud, J. have already been considered by decisions of various
Benches of this Court that have been referred to in the course of our
analysis. From their conclusions, many of which have been extracted by us
in toto, it appears that this Court has always considered the power of
judicial review vested in the High Courts and in this Court under Articles
226 and 32 respectively, enabling legislative action to be subjected to the
scrutiny of superior courts, to be integral to our constitutional scheme.
While several judgments have made specific references to this aspect
[Gajendragadkar, C.J. in Keshav Singh case, Beg, J. and Khanna, J. in
Kesavananda Bharati [pic]case, Chandrachud, C.J. and Bhagwati, J. in
Minerva Mills, Chandrachud, C.J. in Fertilizer Kamgar[(1981) 1 scc 568],
K.N. Singh, J. in Delhi Judicial Service Assn. [(1991)4 scc 406], etc.] the
rest have made general observations highlighting the significance of this
feature."
23. In S.N. Mukherjee vs.Union of India, (1990)4 SCC 594, this Court
noticed the special provision in regard to the members of the Armed Forces
in the Constitution of India and held as follows:
[pic]" 42. Before referring to the relevant provisions of the Act and the
Rules it may be mentioned that the Constitution contains certain special
provisions in regard to members of the Armed Forces. Article 33 empowers
Parliament to make law determining the extent to which any of the rights
conferred by Part III shall, in their application to the members of the
Armed Forces be restricted or abrogated so as to ensure the proper
discharge of their duties and the maintenance of discipline amongst them.
By clause (2) of Article 136 the appellate jurisdiction of this Court under
Article 136 of the Constitution has been excluded in relation 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.
Similarly clause (4) of Article 227 denies to the High Courts the power of
superintendence over any court or tribunal constituted by or under any law
relating to the Armed Forces. This Court under Article 32 and the High
Courts under Article 226 have, however, the power of judicial review in
respect of proceedings of courts martial and the proceedings subsequent
thereto and can grant appropriate relief if the said proceedings have
resulted in denial of the fundamental rights guaranteed under Part III of
the Constitution or if the said proceedings suffer from a jurisdictional
error or any error of law apparent on the face of the record."
24. A three-Judge Bench of this Court in R.K. Jain vs. Union of India &
ors., (1993) 4 SCC 119, observed:
"66. In S.P. Sampath Kumar v. Union of India this Court held that the
primary duty of the judiciary is to interpret the Constitution and the laws
and this would predominantly be a matter fit to be decided by the
judiciary, as judiciary alone would be possessed of expertise in this field
and secondly the constitutional and legal protection afforded to the
citizen would become illusory, if it were left to the executive to
determine the legality of its own action. The Constitution has, therefore,
created an independent machinery i.e. judiciary to resolve disputes, which
is vested with the power of judicial review to determine the legality of
the legislative and executive actions and to ensure compliance with the
requirements of law on the part of the executive and other authorities.
This function is discharged by the judiciary by exercising the power of
judicial review which is a most potent weapon in the hands of the judiciary
for maintenance of the rule of law. The power of judicial review is an
integral part of our constitutional system and without it, there will be no
government of laws and the rule of law would become a teasing illusion and
a promise of unreality. The judicial review, therefore, is a basic and
essential feature of the Constitution and it cannot be abrogated without
affecting the basic structure of the Constitution. The basic and essential
feature of judicial review cannot be dispensed with but it would be within
the competence of Parliament to amend the Constitution and to provide
alternative institutional mechanism or arrangement for judicial
[pic]review, provided it is no less efficacious than the High Court. It
must, therefore, be read as implicit in the constitutional scheme that the
law excluding the jurisdiction of the High Court under Articles 226 and 227
permissible under it, must not leave a void but it must set up another
effective institutional mechanism or authority and vest the power of
judicial review in it which must be equally effective and efficacious in
exercising the power of judicial review. The tribunal set up under the
Administrative Tribunals Act, 1985 was required to interpret and apply
Articles 14, 15, 16 and 311 in quite a large number of cases. Therefore,
the personnel manning the administrative tribunal in their determinations
not only require judicial approach but also knowledge and expertise in that
particular branch of constitutional and administrative law. The efficacy of
the administrative tribunal and the legal input would undeniably be more
important and sacrificing the legal input and not giving it sufficient
weightage would definitely impair the efficacy and effectiveness of the
Administrative Tribunal. Therefore, it was held that an appropriate rule
should be made to recruit the members; and to consult the Chief Justice of
India in recommending appointment of the Chairman, Vice-Chairman and
Members of the Tribunal and to constitute a committee presided over by
Judge of the Supreme Court to recruit the members for appointment. In M.B.
Majumdar v. Union of India when the members of CAT claimed parity of pay
and superannuation as is available to the Judges of the High Court, this
Court held that they are not on a par with the judges but a separate
mechanism created for their appointment pursuant to Article 323-A of the
Constitution. Therefore, what was meant by this Court in Sampath Kumar case
ratio is that the tribunals when exercise the power and functions, the Act
created institutional alternative mechanism or authority to adjudicate the
service disputations. It must be effective and efficacious to exercise the
power of judicial review. This Court did not appear to have meant that the
tribunals are substitutes of the High Court under Articles 226 and 227 of
the Constitution. J.B. Chopra v. Union of India merely followed the ratio
of Sampath Kumar."
25. From the aforesaid decisions of this Court in L. Chandra and S.N.
Mukherjee, we find that the power of judicial review vested in the High
Court under Article 226 is one of the basic essential features of the
Constitution and any legislation including Armed Forces Act, 2007 cannot
override or curtail jurisdiction of the High Court under Article 226 of the
Constitution of India.
26. Basic principle for exercising power under Article 226 of the
Constitution:
In Babubhai Muljibhai Patel vs. Nandlal Khodidas Barot and others,
AIR 1974 SC 2105 this Court held as follows:
"9.....Exercise of the jurisdiction is no doubt discretionary, but
the discretion must be exercised on sound judicial principles. When the
petition raises complex questions of fact, which may for their
determination require oral evidence to be taken, and on that account the
High Court is of the view that the dispute should not appropriately be
tried in a writ petition, the High Court may decline to try a petition (See
Gunwant Kaur v.Bhatinda Municipality, AIR 1970 SC 802). If, however,on
consideration of the nature of the controversy, the High Court decides, as
in the present case, that it should go into a disputed question of fact and
the discretion exercised by the High Court appears to be sound and in
conformity with judicial principles, this Court would not interfere in
appeal with the order made by the High Court in this respect."
27. In Mafatlal Industries Ltd. and others vs.Union of India and others,
(1997) 5 SCC 536, a nine-Judge Bench of this Court while considering the
Excise Act and Customs Act held that the jurisdiction of the High Court
under Article 226 and this Court under Article 32 though cannot be
circumscribed by the provisions of the said enactments, they will certainly
have due regard to the legislative intent evidenced by the provisions of
the said Acts and would exercise their jurisdiction consistent with the
provisions of the Act. This Court held:
"108. The discussion in the judgment yields the following propositions. We
may forewarn that these propositions are set out merely for the sake of
convenient reference and are not supposed to be exhaustive. In case of any
doubt or ambiguity in these propositions, reference must be had to the
discussion and propositions in the body of the judgment.
(i)...........While the jurisdiction of the High Courts under Article
226 - and of this Court under Article 32 - cannot be circumscribed by the
provisions of the said enactments, they will certainly have due regard to
the legislative intent evidenced by the [pic]provisions of the said Acts
and would exercise their jurisdiction consistent with the provisions of the
Act. The writ petition will be considered and disposed of in the light of
and in accordance with the provisions of Section 11-B. This is for the
reason that the power under Article 226 has to be exercised to effectuate
the rule of law and not for abrogating it.
Xxx xxx xxx xxx
28. In Kanaiyalal Lalchand and Sachdev and others vs. State of
Maharasthra and others, (2011) 2 SCC 782, this Court considered the
question of maintainability of the writ petition while an alternative
remedy is available. This Court upheld the decision of the Bombay High
Court dismissing the writ petition filed by the appellants therein on the
ground of existence of an efficacious alternative remedy under Section 17
of SARFASI Act and held:
"23. In our opinion, therefore, the High Court rightly dismissed the
petition on the ground that an efficacious remedy was available to the
appellants under Section 17 of the Act. It is well settled that ordinarily
relief under Articles 226/227 of the Constitution of India is not available
if an efficacious alternative remedy is available to any aggrieved person.
(See Sadhana Lodh v. National Insurance Co. Ltd., Surya Dev Rai v. Ram
Chander Rai and SBI v. Allied Chemical Laboratories7.)
24. In City and Industrial Development Corpn. v. Dosu Aardeshir
Bhiwandiwala this Court had observed that: (SCC p. 175, para 30)
"30. The Court while exercising its jurisdiction under Article 226 is duty-
bound to consider whether:
(a) adjudication of the writ petition involves any complex and disputed
questions of facts and whether they can be satisfactorily resolved;
(b) the petition reveals all material facts;
(c) the petitioner has any alternative or effective remedy for the
resolution of the dispute;
(d) the person invoking the jurisdiction is guilty of unexplained delay and
laches;
(e) ex facie barred by any laws of limitation;
(f) grant of relief is against public policy or barred by any valid law;
and host of other factors."
29. In Nivedita Sharma vs. Cellular Operators Association of India and
others, (2011)14 SCC 337, this Court noticed that when a statutory forum is
created by law for redressal of grievances, a writ petition should not be
entertained ignoring the statutory dispensation. The Court further noticed
the previous decisions of this Court wherein the Court adverted to the rule
of self-restraint that writ petition will not be entertained if an
effective remedy is available to the aggrieved person as follows:
13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa this Court
observed: (SCC pp. 440-41, para 11)
"11. ... It is now well recognised that where a right or liability is
created by a statute which gives a special remedy for enforcing it, the
remedy provided by that statute only must be availed of. This rule was
stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co.
v. Hawkesford in the following passage: (ER p. 495)
'... There are three classes of cases in which a liability may be
established founded upon a statute. ... But there is a third class viz.
where a liability not existing at common law is created by a statute which
at the same time gives a special and particular remedy for enforcing it.
... The remedy provided by the statute must be followed, and it is not
competent to the party to pursue the course applicable to cases of the
second class. The form given by the statute must be adopted and adhered
to.'
The rule laid down in this passage was approved by the House of Lords in
Neville v. London Express Newspapers Ltd. and has been reaffirmed by the
Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant
and Co. Ltd. and Secy. of State v. Mask and Co. It has also been held to be
equally applicable to enforcement of rights, and has been followed by this
Court throughout. The High Court was therefore justified in dismissing the
writ petitions in limine."
14. In Mafatlal Industries Ltd. v. Union of India B.P. Jeevan Reddy, J.
(speaking for the majority of the larger Bench) observed: (SCC p. 607, para
77)
"77. ... So far as the jurisdiction of the High Court under Article 226-or
for that matter, the jurisdiction of this Court under Article 32-is
concerned, it is obvious that the provisions of the Act cannot bar and
curtail these remedies. It is, however, equally obvious that while
[pic]exercising the power under Article 226/Article 32, the Court would
certainly take note of the legislative intent manifested in the provisions
of the Act and would exercise their jurisdiction consistent with the
provisions of the enactment."
15. In the judgments relied upon by Shri Vaidyanathan, which, by and large,
reiterate the proposition laid down in Baburam Prakash Chandra Maheshwari
v. Antarim Zila Parishad, it has been held that an alternative remedy is
not a bar to the entertaining of writ petition filed for the enforcement of
any of the fundamental rights or where there has been a violation of the
principles of natural justice or where the order under challenge is wholly
without jurisdiction or the vires of the statute is under challenge.
16. It can, thus, be said that this Court has recognised some exceptions to
the rule of alternative remedy. However, the proposition laid down in
Thansingh Nathmal v. Supt. of Taxes8 and other similar judgments 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 action complained of has
been taken itself contains a mechanism for redressal of grievance still
holds the field."
30. In Executive Engineer, Southern Electricity Supply Company of Orissa
Limited (SOUTHCO) and another vs. Sri Seetaram Rice Mill, (2012) 2 SCC 108,
a three-Judge Bench held:
"80. It is a settled canon of law that the High Court would not normally
interfere in exercise of its jurisdiction under Article 226 of the
Constitution of India where statutory alternative remedy is available. It
is equally settled that this canon of law is not fre