$~1A(1)-1A(35) & 1A(37)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 15th March, 2011
Judgment Delivered on: 26th April, 2011
+ W.P.(C) 13360/2009
COLONEL A.D.NARGOLKAR ..... Petitioner
Through: Mr.Vinay Kr. Garg, Advocate with
Mr.Fazal Ahmad and Ms.Namrata
Singh, Advocates.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.A.S.Chandhiok, ASG and
Mr.Atul Nanda, Sr.Advocate with
Mr.Ankur Chhibber and Mr. Anuj
Aggarwal, Advocates for UOI with
Major Rahul Soni
W.P.(C) 13367/2009
COLONEL A.D.NARGOLKAR ..... Petitioner
Through: Mr.Vinay Kr. Garg, Advocate with
Mr.Fazal Ahmad and Ms.Namrata
Singh, Advocates.
versus
UNION OF INDIA AND ORS ..... Respondents
Through: Mr.A.S.Chandhiok, ASG and
Mr.Atul Nanda, Sr.Advocate with
Mr.Ankur Chhibber, Advocate for
UOI with Major Rahul Soni.
W.P.(C) 273/2010
JC-23692P KISALAR NABAB SINGH ..... Petitioner
Through: Mr.D.S.Kauntae, Advocate.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Atul Nanda, Sr.Advocate with
WP(C) 13360/2009 & connected matters Page 1 of 69
Mr.Ankur Chhibber, Advocate for
UOI with Major Rahul Soni.
W.P.(C) 654/2010
LT. COL. HARPREET SINGH ..... Petitioner
Through: None.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Atul Nanda, Sr.Advocate with
Mr.Ankur Chhibber and Mr. Anuj
Aggarwal, Advocates for UOI with
Major Rahul Soni.
W.P.(C) 1918/2010
OM PRAKASH ..... Petitioner
Through: None.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Gaurav M.Liberhan, Advocate,
Mr.Atul Batra, Advocate and
Ms.Swapnil Jain, Advocate for UOI.
W.P.(C) 2667/2010
COL. SANJAY KUMAR ..... Petitioner
Through: None.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Atul Nanda, Sr.Advocate with
Mr.Ankur Chhibber, Advocate for
UOI with Major Rahul Soni.
WP(C) 13360/2009 & connected matters Page 2 of 69
W.P.(C) 3086/2010
S.YADAV ..... Petitioner
Through: Mr.V.S.Tomar, Advocate
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Sachin Datta, Advocate with
Mr.Abhimanyu Kumar, Advocate
for UOI.
W.P.(C) 3405/2010
USHA ATRI ..... Petitioner
Through: Mr.K.K.Rohatgi, Advocate
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Ms.Raman Oberoi, Advocate for
UOI.
W.P.(C) 3439/2010
NARVIR SINGH ..... Petitioner
Through: Col.S.R.Kalkal, Advocate
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Atul Nanda, Sr.Advocate with
Mr.Ankur Chhibber, Advocate for
UOI with Major Rahul Soni.
W.P.(C) 3441/2010
MAHA RAM ..... Petitioner
Through: Col.S.R.Kalkal, Advocate
versus
WP(C) 13360/2009 & connected matters Page 3 of 69
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Atul Nanda, Sr.Advocate with
Mr.Ankur Chhibber, Advocate for
UOI with Major Rahul Soni.
W.P.(C) 3578/2010
V.S.SUKHDIAL, YSM ..... Petitioner
Through: Mr.Dil Jit Singh, Advocate.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Ms.Anjana Gosain, Advocate for
UOI.
W.P.(C) 3828/2010
NARESH KUMAR ..... Petitioner
Through: Col.S.R.Kalkal, Advocate
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Atul Nanda, Sr.Advocate with
Mr.Ankur Chhibber, Advocate for
UOI with Major Rahul Soni.
W.P.(C) 3836/2010
INDRA SINGH SOLANKI ..... Petitioner
Through: Mr.S.M.Dalal, Advocate
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Atul Nanda, Sr.Advocate with
Mr.Ankur Chhibber, Advocate for
UOI with Major Rahul Soni.
WP(C) 13360/2009 & connected matters Page 4 of 69
W.P.(C) 3841/2010
RAM SWARUP ..... Petitioner
Through: Mr.S.M.Dalal, Advocate
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Atul Nanda, Sr.Advocate with
Mr.Ankur Chhibber, Advocate for
UOI with Major Rahul Soni.
W.P.(C) 4417/2010
G.S. BENIWAL ..... Petitioner
Through: Mr.Mathew D., Mr.Mohinder Singh
& Mr.D.S.Chaudhary, Advocates.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Atul Nanda, Sr.Advocate with
Mr.Ankur Chhibber, Advocate for
UOI with Major Rahul Soni.
W.P.(C) 4524/2010
KIRAN PAL SINGH ..... Petitioner
Through: None.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Atul Nanda, Sr.Advocate
with Mr.Ankur Chhibber,
Advocate for UOI with Major
Rahul Soni.
W.P.(C) 4652/2010
B.D. KHENTE ..... Petitioner
Through: Mr.D.S.Kauntae, Advocate.
WP(C) 13360/2009 & connected matters Page 5 of 69
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Ms.Barkha Babbar, Advocate for
UOI with Major Rahul Soni.
W.P.(C) 4669/2010
EX. SIGMN GANGA RAMA SHARMA ..... Petitioner
Through: Mr.S.M.Dalal, Advocate
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Ms.Jyoti Singh, Senior Advocate
with Mr.Jayendra, Advocate for UOI.
W.P.(C) 4699/2010
RAMESHWAR PRASAD SHARMA ..... Petitioner
Through: None.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Ruchir Mishra & Mr.Mukesh
Tiwari, Advocates for UOI.
W.P.(C) 4887/2010
SURJIT KAUR ..... Petitioner
Through: Mr.D.S.Kauntae, Advocate.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Ms.Barkha Babbar, Advocate for
UOI with Major Rahul Soni.
W.P.(C) 4926/2010
INDER SINGH ..... Petitioner
Through: Mr.S.M.Dalal, Advocate
WP(C) 13360/2009 & connected matters Page 6 of 69
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Atul Nanda, Sr.Advocate with
Mr.Ankur Chhibber, Advocate for
UOI with Major Rahul Soni.
W.P.(C) 5090/2010
HARVINDER SINGH KOHLI ..... Petitioner
Through: None.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Ms.Barkha Babbar, Advocate for
UOI with Major Rahul Soni.
W.P.(C) 5156/2010
VIJAY BAHADUR SINGH ..... Petitioner
Through: Mr.S.M.Dalal, Advocate
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Ravinder Agarwal, CGSC with
Major Rahul Soni.
W.P.(C) 5189/2010
PRABHU DAYAL SHARMA ..... Petitioner
Through: None.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Atul Nanda, Sr.Advocate with
Mr.Ankur Chhibber, Advocate for
UOI with Major Rahul Soni.
WP(C) 13360/2009 & connected matters Page 7 of 69
W.P.(C) 5206/2010
RAI SINGH ..... Petitioner
Through: None.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.D.S.Mahendru, CGSC with
Mr.M.P.Singh, Advocate with Major
Rahul Soni.
W.P.(C) 5764/2010
LT. COL. RAJEEV BHATT ..... Petitioner
Through: Mr.Fazal Ahmad with Mr.Namrata
Singh, Advocates.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Atul Nanda, Sr.Advocate with
Mr.Ankur Chhibber, Advocate for
UOI with Major Rahul Soni.
W.P.(C) 5794/2010
HAV REIJI KUMAR ..... Petitioner
Through: None.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Neeraj Chaudhari, CGSC
with Mr.Mohit Auluck and Mr.Khalid
Arshad,Advocates with Major Rahul
Soni.
W.P.(C) 6061/2010
PSK CHOUDHARY ..... Petitioner
Through: Mr.S.M.Dalal & Mr.P.D.P.Deo,
Advocates.
WP(C) 13360/2009 & connected matters Page 8 of 69
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Atul Nanda, Sr.Advocate with
Mr.Ankur Chhibber, Advocate for
UOI with Major Rahul Soni.
W.P.(C) 6066/2010
BHAGWAN SINGH ..... Petitioner
Through: Mr.M.G.Kapoor, Advocate
versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Ms.Jyoti Singh, Sr.Advocate with
Mr.M.P.Singh, Advocate with Major
Rahul Soni.
W.P.(C) 6183/2010
R.P. SINGH ..... Petitioner
Through: Mr.Dil Jit Singh, Advocate.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.B.V.Niren, CGSC with
Mr.Abhishek Goyal, Advocate for
UOI.
W.P.(C) 7018/2010
GUNNER STOREHAND BANARASI LAL ..... Petitioner
Through: Mr.Dipak Bhattacharya and
Mr.Mithilesh Kumar, Advocate.
versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Ms.Jyoti Singh, Sr.Advocate with
WP(C) 13360/2009 & connected matters Page 9 of 69
Mr.M.P.Singh, Advocate with Major
Rahul Soni.
W.P.(C) 7039/2010
MILKHI RAM ..... Petitioner
Through: Mr.Dipak Bhattacharya and
Mr.Mithilesh Kumar, Advocate.
versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Ms.Jyoti Singh, Sr.Advocate with
Mr.M.P.Singh, Advocate with Major
Rahul Soni.
W.P.(C) 7040/2010
SEWA RAM NAGIAL ..... Petitioner
Through: Mr.Dipak Bhattacharya and
Mr.Mithilesh Kumar, Advocate.
versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Ms.Jyoti Singh, Sr.Advocate with
Mr.M.P.Singh, Advocate with Major
Rahul Soni.
W.P.(C) 7041/2010
SAT PAL ..... Petitioner
Through: Mr.Dipak Bhattacharya and
Mr.Mithilesh Kumar, Advocate.
versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Ms.Jyoti Singh, Sr.Advocate with
Mr.M.P.Singh, Advocate with Major
Rahul Soni.
W.P.(C) 7042/2010
HARI SINGH ..... Petitioner
WP(C) 13360/2009 & connected matters Page 10 of 69
Through: Mr.Dipak Bhattacharya and
Mr.Mithilesh Kumar, Advocate.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Ms.Jyoti Singh, Sr.Advocate with
Mr.M.P.Singh, Advocate with Major
Rahul Soni.
W.P.(C) 8298/2010
BHAGWAN SINGH ..... Petitioner
Through: Ms.Kusum Sharma, Advocate.
versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Ms.Jyoti Singh, Sr.Advocate with
Mr.M.P.Singh, Advocate and
Major Rahul Soni.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. For every real or imaginary problem, a law is enacted
with the belief, that by this step the problem will be solved.
But we find, for reasons which are fairly unexplainable, that
problematic issues relating to the problem arise. The problem
of delay in adjudication of disputes between members of an
Armed Force and the Force in Civil Courts led to the
establishment of the Armed Forces Tribunal with the pious
hope that an exclusive Tribunal to decide disputes relating to
WP(C) 13360/2009 & connected matters Page 11 of 69
Armed Forces would facilitate a speedy adjudication of
disputes, but the establishment of the Tribunal has raised
jurisdictional issues pertaining to the power of a High Court
under Article 226 and Article 227 of the Constitution of India.
2. Much has been said about the delay in obtaining justice
in Courts and one probable reason for the delay, apart from
many others, is the multiple tiered adjudicatory forums
available to the litigating parties. A simple revenue matter,
pertaining to an entry in the record of rights, commences with
a claim before the tehsildar whose decision is amenable to a
challenge by way of an appeal either before the Revenue
Assistant or an Additional Collector and a further forum of a
Revision before the Financial Commissioner. Exhausting the
channel of forums available before the Revenue Authorities, an
aggrieved party can approach the High Court under its Writ or
Supervisory Jurisdiction under Article 226 or Article 227 of the
Constitution of India, which writ is heard by a learned Single
Judge of the High Court. Further forum of a Writ Appeal or a
Letters Patent Appeal is available before a Division Bench and
at the top of the pyramid would be a Petition for Special Leave
to Appeal before the Supreme Court. The eviction of an
unauthorized occupant from a public premises commences
with a proceedings before the Estate Officer whose decision
can be challenged by way of an Appeal before the District
Judge and further remedies, one before a Single Judge and one
before a Division Bench thereafter are available in the High
Court before the destination is reached by way of a Petition for
Special Leave to Appeal before the Supreme Court. An issue
of levy and assessment of house tax commences with an
adjudication before the Assessor and Collector against whose
WP(C) 13360/2009 & connected matters Page 12 of 69
decision an Appeal would lie to either the District Judge or a
Committee of Assessors and thereafter the water flows before
a Single Judge and thereafter a Division Bench of the High
Court before terminating by way of a Petition for Special Leave
to Appeal before the Supreme Court. A licensing issue
commences with a decision of the Licensing Inspector against
which a departmental remedy by way of a representation to
the Commissioner would lie before the water flows through a
Single Judge and thereafter a Division Bench of the High Court
before terminating by way of a Petition for Special Leave to
Appeal before the Supreme Court. A simple recovery suit
before a Judge, Junior Division, would result in an Appeal
before a Judge Senior Division i.e. a Regular First Appeal with
further remedy before the High Court by way of a Regular
Second Appeal and the ultimate destination would be a
Petition for Special Leave to Appeal before the Supreme Court.
An ejectment petition before a Rent Controller leads to a First
Appeal before the Rent Control Tribunal and if the remedy of
Second Appeal against order is not provided by the statute a
challenge would lie under the supervisory jurisdiction of the
High Court under Article 227 of the Constitution of India and
mercifully no challenge would lie before a Division Bench and
the journey would end a step earlier before the Supreme Court
by way of a Special Leave to Appeal.
3. The multi tiered adjudicatory forums, having a
pyramidical structure, are bound to result in congestion as we
move upwards and the movement of the traffic (litigation) is
bound to be slow; and if not result in making an exit from the
reality of life, the slow pace certainly diminishes the value of a
claim. Some believe that the existing adjudicatory
WP(C) 13360/2009 & connected matters Page 13 of 69
mechanism, which functions in a multi-tiered pyramidically
structured structure, has virtually reduced the whole system
into a reductio ad absurdum.
4. In spite of all these criticisms, it is also true to say that
the system of administration of justice has withstood the test
of time notwithstanding its inability to readjust itself to the
changing time.
5. The concept of ‗Rule of Law’ is the outcome of the legal
and political experience of people. The Rule of Law embodies
the hard fought gains in the Common Law Traditions of
England. It was the culmination of a long and bitter struggle of
the common lawyers against Royal Tyranny. As far back as in
the 13th Century, Bracton maintained that even Kings were
subject to law. He exhorted: ‗The King shall not be subject to
man, but to God and the Law since law makes the King’.
James-I, who believed in the divine right of Kings, dictate that
the King’s will was supreme. He told the Judges not to
interfere with his prerogative Courts, such as the Star
Chamber. Chief Justice, Sir Edward Coke, repudiated the
King’s claim and declared that Judges would follow the
Common Law and the King was under the Law. Indeed, the
Judges won the struggle against the Royal claim to rule by
prerogative.
6. The Parliament, with the aid of common lawyers, won the
glorious bloodless revolution against the Kings. But, in the
place of the King’s supremacy, the supremacy of the
Parliament came to be established. The supremacy of law,
which Bracton and Coke had fought for and won, came to
mean the supremacy of Parliament and its penchant for
‗elective dictatorship’. Men realized that it would be a grave
WP(C) 13360/2009 & connected matters Page 14 of 69
mistake to equate legitimacy with the sovereign will or
majority rule alone to the exclusion of other constitutional
values.
7. As Parliament legislated to control the rights of the
citizens, the concern of the Rule of Law was to limit and
discipline this sovereign power to legislate.
8. Three essential components of the concept of Rule of
Law emerged. The first was that the law is supreme over the
acts of both, the government and the citizens. The second
was an independent judiciary to adjudicate claims between the
government and the citizens and the third was the exercise of
public power must find its ultimate source in some legal rule
and the relationship between the State and the citizen must be
regulated only by law.
9. Highlighting the second component of the concept of the
Rule of Law, suffice would it be to state that laws, which ought
to be equal, general and known, need to be administered by
independent Judges and the three organs of the State i.e. the
Legislature, the Executive and the Judiciary shall be separate.
10. The Indian Constitution rests on federalism, democracy,
constitutionalism, respect for minority rights, fundamental
rights of the individual and the Rule of Law. These defining
principles function in symbiosis and no single principle can be
defined in isolation from the others, nor does any one principle
trump or exclude the operation of the other.
11. The problem of judicial delays resulting from a
pyramidical structure of adjudicatory forums has its roots in
the concept of the Rule of Law having a feature of independent
Judges, free from the control of the Executive, to decide
disputes between the State and its citizens. The problem is
WP(C) 13360/2009 & connected matters Page 15 of 69
the result of two conflicting values which society cherishes and
has nurtured over the years. The first conflicting value is to
secure, in the shortest possible time, the right conferred by
law upon the citizen of the State and the second conflicting
value is a say, in the adjudicatory process, by an independent
Judge.
12. Whereas the State beckons us, in the instant writ
petitions, to sacrifice the value of an independent Judge having
a say in the adjudicatory process to resolve a conflict between
a member of an Armed Force, subject to the Army Act, the
Navy Act and the Air Force Act, and the Force and leave it to
the Tribunal constituted under the Armed Forces Tribunal Act
2007 to do the needful; the result being a speedy adjudication
of claims, stated to be necessary to maintain discipline in
Armed Forces. The protagonists i.e. the writ petitioners state
that it would be too heavy a price to pay i.e. speedy justice, if
they have to sacrifice an independent Judge having a say in
the adjudicatory process.
13. The cardinal question which arises for consideration in
the above caption writ petitions, upon the answer whereof
would depend whether the issues of merit raised in the writ
petitions can be adjudicated on, is whether a writ of
error/certiorari or any other writ of the like nature would lie
under Article 226 of the Constitution of India against a decision
of the Tribunal constituted under the Armed Forces Tribunal
Act 2007 and additionally whether a High Court can exercise
the power of superintendence over said Tribunal, a power of
the High Court under Article 227 of the Constitution of India.
14. The legislative competence in both, i.e. the Parliament
and the State Legislatures, to effect changes in the Original
WP(C) 13360/2009 & connected matters Page 16 of 69
Jurisdiction of the Supreme Court and the High Court can be
traced not only to Article 323-A and 323-B of the Constitution
of India inserted in the Constitution by the Constitution 42nd
Amendment Act 1976, but even under entries 77, 78, 79 and
95 of List-I, pertaining to Parliament; and entry 65 of List-II,
pertaining to the State Legislature; and entry 46 of List-III
available to both. Thus, none has argued with respect to the
lack of legislative competence in the Parliament to enact ‗The
Armed Forces Tribunal Act 2007′ and we note that no section
thereof is under challenge with respect to the constitutionality
thereof. Pertaining to a Tribunal pertaining to an Armed Force,
it may be highlighted that neither Article 323A nor Article 323B
specifically refers to an Armed Force Tribunal, but entry 2
under List-I read with entry 97 of said list would be the safe
source of the legislative power to create an Armed Force
Tribunal.
15. Not that discipline is irrelevant in a civil society and that
its relevance is only to an Armed Force, but surely everybody
would agree that whereas some form of indiscipline may be
accepted in the din of democracy, there is just no scope to
brook even the slightest indiscipline in an Armed Force; for the
reason it is recognized that in times of peace an Armed Force
constitutes a grave threat to democracy. In the Indian
context, by virtue of Article 33 of the Constitution of India,
rights conferred by Part-III of the Constitution of India i.e. the
precious fundamental rights available to persons and citizens
of India can be curtailed in their application to the members of
the Armed Forces and laws were enacted in India which gave
the right to the Armed Forces to subject its members to
punishment extending up to even the sentence of death at
WP(C) 13360/2009 & connected matters Page 17 of 69
trials presided over by fellow members of the Armed Force,
way back in the year 1982, in the decision reported as AIR
1982 SC 1414 Lt.Col.Prithi Pal Singh Bedi vs. UOI & Ors., noting
that military trials are subject to varying degrees of ‗command
influence’ and there was absence of even one appeal with an
Appellate Forum (having power to review evidence, legal
formulations, conclusions and adequacy or otherwise of
punishment), and opining the same to be not in sync with
democratic principles; further noting the changes adopted in
foreign jurisdictions, the Supreme Court expressed a pious
hope that the legislature should earnestly consider creating an
Appellate Forum, which should be free from the command
influence, for members of Armed Forces; lest these brave sons
and daughters of India feel being orphaned in a democratic
society. The Supreme Court expressed itself, in para 45 of the
decision, by highlighting that whereas a hierarchy of Courts
with appellate powers has been found to be counter-
productive, and suggested at least a single judicial review
forum which must truly be a judicial review forum for the
members of the Armed Forces to question the verdicts against
them at a Court Martial. This was the clarion call which went
unheeded and unnoticed till, in the year 1999, the Law
Commission, in its 169th Report, titled as ‗Amendment of Army,
Navy and Air Force Acts – April 1999′ opining that the
requirement of justice and discipline for members of the
Armed Forces had to march hand in hand and recommended
setting up of an Adjudicatory Forum, to act as an Appellate
Forum, against decisions of Military Courts and Military
Tribunals. In para 1.1 and 1.2 of its report, the Law
Commission highlighted that the existing mechanism of High
WP(C) 13360/2009 & connected matters Page 18 of 69
Courts entertaining petitions under Article 226 of the
Constitution of India against verdicts by Court Martials was
unhealthy inasmuch as each High Court was adopting its own
approach in the matter and thus there was a desirability of
having a single Appellate Tribunal. In para 5.1.1 of its report,
the Tribunal recommended that the Appellate Tribunal should
not be a totally Civilian Appellate Tribunal as has been
provided in the United Kingdom, opining that in the Indian
context this may not be conducive to the discipline of the
Armed Force. The Law Commission suggested a hybrid
Tribunal, headed by a Civilian Judge whose other members
could be drawn from retired members of the Armed Forces. In
para 5.1.4 of the Report, the Commission recommended a
direct Statutory Appeal to the Supreme Court against the
decisions of the Tribunal and expressed a hope that if a
legislation was enacted in harmony with its recommendations
the Commission would expect that no High Court would
entertain a writ petition under Article 226 of the Constitution of
India against the orders of the Appellate Tribunal. In para 6.1
of its Report the Law Commission noted that each year
thousands of writ petitions were filed by members of Armed
Forces in several High Courts in India concerning their service
matters and due to docket explosions in Courts these matters
remain pending for years together resulting in a sense of
dissatisfaction creeping into the members of the Armed
Forces; it was opined by the Law Commission that this
creeping dissatisfaction was against the interest of discipline in
an Armed Force. Thus, the Law Commission recommended
that the Statutory Appellate Tribunal to be created should be
all embracive i.e. should act as the Appellate Forum for merit
WP(C) 13360/2009 & connected matters Page 19 of 69
review of Court Martials as also as the Forum where service
disputes such as seniority, promotions and other conditions of
service could be adjudicated upon. In para 6.2.4 of the report,
the Law Commission opined that if an adequate remedy of
appeal, on a question of law against the decision of the
proposed Tribunal would be made available before the
Supreme Court, in view of an adequate remedy of appeal, the
High Courts would not exercise jurisdiction under Article 226 of
the Constitution of India.
16. The setting up of Armed Forces Tribunal was then taken
up by the 13th Lok Sabha Standing Committee on Defence,
resulting in the committee recommending a Special Court of
Appeal, headed by a retired Judge of the Supreme Court,
independent of service headquarters, to be constituted for the
redressal of grievances of service personnel, but restricted the
same against decisions of Military Courts. The Parliament took
up the matter further and we saw the birth of ‗The Armed
Forces Tribunal Act 2007′ when having been passed by both
the Houses of Parliament, The Armed Forces Tribunal Bill
received the assent of the President of India on the 20 th day of
December 2007 and came on the Statute Book as THE ARMED
FORCES TRIBUNAL ACT 2007 (ACT NO.55 OF 2007).
17. It was but necessary that in the Statement of Objects and
Reasons, the necessity of the legislation was traced to the
observations of the Supreme Court in Prithi Pal Singh Bedi’s
case (supra).
18. As per the Preamble, the Act aims to provide, for the
adjudication or trial, by Armed Forces Tribunal, of disputes and
complaints with respect to commission, appointment,
enrollment and conditions of service in respect of persons
WP(C) 13360/2009 & connected matters Page 20 of 69
subject to the Army, Navy and Air Force Act and additionally to
provide for appeals arising out of orders, findings or sentences
of Court Martial held under the said three acts. In other words,
the Tribunal exercises an Appellate Jurisdiction with respect to
orders, findings or sentences of Court Martials and exercises
Original Jurisdiction with respect to service disputes.
19. As per Section 5 of the Act, the Tribunal is to consist of a
Chairperson and such number of Judicial and Administrative
Members as the Central Government may decide with the
power and jurisdiction of the Tribunal to be exercised by
Benches thereof. Vide sub-section 2 of Section 5, a Bench has
to consist of 1 Judicial Member and 1 Administrative Member.
As per Section 6, the qualification for being appointed as the
Chairperson of the Tribunal is a person being a retired Judge of
the Supreme Court or a retired Chief Justice of a High Court.
The qualification for a Judicial Member is a person who is or
has been a Judge of a High Court. To be qualified for
appointment as an Administrative Member, a person must
have held the rank of Major General or above for at least 3
years in the Army or equivalent rank in the Navy or the Air
Force or is a Judge Advocate General for at least 1 year.
Appointment of Chairperson and Members, as per Section 7 of
the Act, is by the President of India; with consultation with the
Chief Justice of India. As per sub-section 2 of Section 9 of the
Act, the President has the power to remove the Chairperson or
a Member upon ground of proof of misbehaviour or incapacity
after an inquiry is made by a sitting Judge of the Supreme
Court. The staff of the Tribunal is determined by the Central
Government as per Section 13 of the Act.
20. Vide Section 14 of the Act, the Tribunal is vested with the
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jurisdiction relating to service matters pertaining to Members
of the Armed Forces and vide Section 15 of the Act, the
Tribunal is empowered to entertain appeals against Court
Martials. Section 14 and 15 need to be noted and hence we
reproduce the same as under:-
―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:-
(a) summoning and enforcing the attendance of any
person and examining him on oath;
(b) requiring the discovery and production of
documents;
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(c) receiving evidence on affidavits;
(d) 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;
(e) issuing commissions for the examination of
witnesses or documents;
(f) reviewing its decisions;
(g) dismissing an application for default or deciding
it ex parte;
(h) setting aside any order of dismissal of any
application for default or any order passed by it ex
parte; and
(i) 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.
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 thereto.
(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:
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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-
(a) the finding of the court-martial is legally not
sustainable due to any reason whatsoever; or
(b) the finding involves wrong decision on a
question of law; or
(c) 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 therefore 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–
(a) 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
(b) if sentence is found to be excessive, illegal or
unjust, the Tribunal may–
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(i) 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;
(c) 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;
(e) suspend a sentence of imprisonment;
(f) 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 of the
Indian Penal Code (45 of 1860) and Chapter XXVI of the
Code of Criminal Procedure, 1973. (2 of 1974)
21. Vide Section 19 of the Act, the Tribunal is clothed with
the power to punish for contempt but only if the contempt
arises out of using insulting or threatening language or by
causing any interruption or disturbance in the proceedings of
the Tribunal. Relevant would it be to note that the sui generis
power of contempt vested in superior Courts i.e. the High
Court and the Supreme Court to enforce their orders is not
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vested in the Armed Forces Tribunal.
22. Vide Section 23 of the Act, the Tribunal is not bound by
the procedure prescribed by the Code of Civil Procedure 1908
and is free to be guided by its own procedures. Chapter-V,
having 2 sections i.e. Section 30 and Section 31, deals with
Appeals to the Supreme Court and being relevant for our
discussion are noted hereunder:-
―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–
(a) the execution of the punishment or the order
appealed against be suspended; or
(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 powersWP(C) 13360/2009 & connected matters Page 26 of 69
conferred under clause (a) or clause (b), as the case
may be.
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.‖
23. Section 33 of the Act provides for exclusion of jurisdiction
of civil courts and reads as under:-
―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.‖
24. A perusal of the statutory provisions of the Armed Forces
Tribunal Act 2007 would reveal that relating to the jurisdiction
of the Tribunal, vide Section 14, an original jurisdiction is
created with respect to service matters between the members
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of an Armed Force and the Force and vide Section 15 the
Tribunal has been vested with an appellate jurisdiction over
decisions, findings and sentence passed by a Court Martial. It
is also important to note that Sub-Section 1 of Section 14
preserves the jurisdiction of the Supreme Court and of the
High Court and needless to state the jurisdiction of High Court
preserved is under Article 226 and Article 227 of the
Constitution of India. Vide Section 19, a limited power to
punish for contempt is vested in the Tribunal and one find that
the same is limited to using insulting or threatening language
or by causing interruption or disturbance in the proceedings of
the Tribunal. The contempt jurisdiction does not relate to
willful disobedience to a judgment, direction or order passed
by the Tribunal.
25. The right to file an appeal before the Supreme Court
created vide Section 30 of the Act is subject to Section 31 of
the Act and this means that the right to appeal to the Supreme
Court is not a matter of right but is a matter of discretion to be
exercised by the Tribunal upon an application to be filed
seeking leave of the Tribunal to file an appeal to the Supreme
Court. Further, the discretion of the Tribunal to grant leave is
not with respect to every point of law which may have arisen
for consideration before the Tribunal, but is limited to a point
of law of general public importance. Of course, under Section
31 a power has been vested in the Supreme Court to grant
leave to appeal if the Supreme Court would be satisfied that
the point raised before it is one which ought to be considered
by the Supreme Court. In other words the right to appeal
conferred by the Act is a very narrow right and is not akin to a
statutory right of appeal, as a matter of right, understood in
WP(C) 13360/2009 & connected matters Page 28 of 69
law.
26. It needs to be highlighted that the power to appoint the
Chairperson and members of the Tribunal is vested in the
executive.
27. It is time now to note the contentions urged by rival
parties.
28. Sh.Vinay Garg learned counsel who argued, with his
usual adroitness, the lead matter on behalf of the writ
petitioners urged that with the decision of the Supreme Court
reported as 1997 (3) SCC 261 L.Chandra Kumar Vs. UOI the
debate with respect to alternative forums of judicial review
and the power of the High Court under Article 226 and Article
227 of the Constitution of India has been set to rest. The law
being that the power of judicial review vested in constitutional
courts is not only an integral part but is a basic feature of the
Constitution of India and cannot be curtailed by legislation.
Learned counsel was at pains to take us through the growth of
law on the subject and showed us the drifting currents in the
stream of jurisprudence pertaining to judicial review. With
respect to clause 4 of Article 227 of the Constitution of India,
which apparently seeks to take away the jurisdiction of High
Court under Article 227 of the Constitution of India pertaining
to Tribunals constituted for Armed Forces, learned counsel
drew our attention to the Constitution Assembly Debates and
highlighted the distinction between the judicial power of
superintendence and the administrative power of
superintendence and urged that only administrative
superintendence over Tribunals relating to Armed Forces was
taken away from the High Courts and the power of judicial
superintendence was retained. Learned counsel urged that
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Section 14 of the Act recognized the original power of the
Tribunal to adjudicate service disputes relating to members of
an Armed Force and the Force and thus urged that qua
decisions of the Tribunal pertaining to service matters the
power of the High Court under Article 226 and Article 227 of
the Constitution of India remained intact. Qua Section 15 of
the Act learned counsel submitted that the same recognized
the appellate power of the Tribunal with respect to decisions
and sentences by a Court Martial and submitted that qua said
decision of the Tribunal the power of judicial review under
Article 226 and 227 of the Constitution of India was retained
but counsel conceded that exercise thereof would be on very
narrow grounds, on the well-recognized principle evolved by
Courts that in relation to dispute on facts, to be gathered or
inferred from the evidence led, the judicial review would be
limited to determine whether it is a case of no evidence and no
further; and on other issues relating to jurisdiction, the judicial
review would be limited to identification of proceedings
suffering from a jurisdiction error or an error of law apparent
on the face of the record. Counsel highlighted that findings in
sentence at a Court Martial are incapable of execution unless
confirmed by an Executive Authority and thus urged that these
proceedings are akin to a domestic proceedings in civil
service. Other learned counsel for the petitioners adopted
aforenoted line of argument.
29. Per contra, Sh.Atul Nanda learned senior counsel, who
argued with equal aplomb for the respondents urged that as
against civil jurisprudence, military jurisprudence had grown
differently and historically Courts in common law and non
common law jurisdictions had not issued prerogative writs to
WP(C) 13360/2009 & connected matters Page 30 of 69
military courts or tribunals. Conceding that power of judicial
review under Article 226 of the Constitution was recognized to
be a part of the basic structure of the Constitution, counsel
urged that the legislative intent to create an Armed Force
Tribunal which resulted in the legislative mandate under the
Armed Forces Tribunal Act 2007 is to exclude the jurisdiction
of the High Court under the Article 226 and Article 227 of the
Constitution of India and for which submission learned senior
counsel urged that vis-à-vis civil service, requirement of
highest standard of discipline in an armed service was
essential to a democratic society requiring speedy adjudication
of disputes relating to members of an Armed Force and
therefrom learned senior counsel urged that keeping in view
said distinction between a civil service and a military service,
on the principle of comity, speedy justice and the requirement
of reducing multiplicity of litigation, it has to be held that a
High Court either does not have or if having, would refrain
from exercising its power under Article 226 of the Constitution
of India. With respect to the power of superintendence under
Article 227 of the Constitution of India, with reference to
clause 4 thereof, learned senior counsel urged that the
complete power of superintendence created under Article 227
was non-applicable to Tribunals or Courts constituted by a law
relating to the Armed Forces and thus counsel urged that even
judicial superintendence was taken away with respect to the
Armed Forces Tribunal. Learned counsel urged that the power
under Article 226 of the Constitution of India to correct
decisions passed by authorities and persons subordinate to the
High Court did not extend to issue directions to exercise
discretion in a particular manner, which power was a part of
WP(C) 13360/2009 & connected matters Page 31 of 69
the jurisdiction under Article 227 of the Constitution, and thus
learned senior counsel urged that de hors Article 227 of the
Constitution of India, the High Court would be powerless to
issue any direction to the Tribunal to exercise its jurisdiction in
a particular manner.
30. The contention of Sh.Atul Nanda that the power of High
Courts to issue writs under Article 226 of the Constitution of
India must be tested on the touchstone of the well-settled
principle of military jurisprudence that members of Armed
Forces are a separate class; so treated in jurisdictions all over
the world, and the consistent view taken by Courts in England,
America and Canada is that issues of Military Law have to be
treated as outside the scope and realm of ordinary civil
jurisprudence requires us to briefly reflect upon the various
decisions cited at the bar by Sh.Atul Nanda learned Senior
Counsel. We shall link to this discussion the submission that
the historical background under which the Armed Forces
Tribunal was created reflects the legislative intent to take
away the jurisdiction of High Court under Article 226 and
Article 227 of the Constitution.
31. Learned senior counsel rightly pointed out, a submission
which was not controverted by learned counsel for the
petitioners, that in time of peace, a standing army was
considered being a threat to the Rule of Law and this threat to
a democratic nation by an undisciplined army was one of the
foundation of military law i.e. Code of Discipline and secondly
that issues of military discipline were different than those of
disciplining the civil servant and indeed the exigencies of a
military service were qualitatively and quantitatively different
than those of a civil service.
WP(C) 13360/2009 & connected matters Page 32 of 69
32. But, what was submitted by learned counsel for the
petitioners was that the aforesaid foundation merely gave
birth to the extent of judicial review power which a
constitutional Court would exercise with respect to affairs of
the military and affairs of civil services.
33. In the treatise ‗Introduction to the Study of the Law of the
Constitution’ 6th Edition, A.V.Dicey set out the historical
element why it was considered necessary to have a separate
set of Codes of Discipline as the foundation for military law.
The learned author opined as under:-
―As to the Standing Army – A permanent army of paid
soldiers, whose main duty is one of absolute
obedience to commands, appears at first sight to be
an institution inconsistent with that rule of law or
submission to the civil authorities, and especially to
the judges, which is essential to popular or
Parliamentary government; and in truth the
existence of permanent paid forces has often in most
countries and at times in England-notably under the
Commonwealth been found inconsistent with the
existence of what, by a lax though intelligible mode
of speech, is called a free government. The belief
indeed of our statesmen down to a time considerably
later than the Revolution of 1689 was that a standing
army must be fatal to English freedom, yet very soon
after the Revolution it became apparent that the
existence of a body of paid soldiers was necessary to
the safety of the nation. Englishmen, therefore, at
the end of the seventeenth and the beginning of the
eighteenth century, found themselves placed in this
dilemma. With a standing army the country could
not, they feared, escape from despotism; without a
standing army the country could not, they were sure,
avert invasion; the maintenance of national liberty
appeared to involve the sacrifice of national
WP(C) 13360/2009 & connected matters Page 33 of 69
independence. Yet English statesmanship found
almost by accident a practical escape from this
theoretical dilemma, and the Mutiny Act, though an
enactment passed in a hurry to meet an immediate
peril, contains the solution of an apparently
insolvable problem.
The position of the army in fact was determined by
an adherence on the part of the authors of the first
Mutiny Act to the fundamental principle of English
law, that a soldier may, like a clergyman, incur
special obligations in his official character, but is not
thereby exempted from the ordinary liabilities of
citizenship.
The object and principles of the first Mutiny Act of
1689 are exactly the same as the object and
principles of the Army Act, 1881, under which the
English army is in substance now governed. A
comparison of the two statutes shows at a glance
what are the means by which the maintenance of
military discipline has been reconciled with the
maintenance of freedom, or, to use a more accurate
expression, with the supremacy of the law of the
land.‖
34. Similar ethos is to be found in the treatise ‗The Federalist
and Other Constitutional Papers’ by Hamilton, Jay, Madison.
35. Since at the heart of the matter at hand is the issue
whether this Court can exercise jurisdiction under Article 226
and/or Article 227 of the Constitution of India with respect to
decisions pronounced by the Armed Forces Tribunal
constituted under the Armed Forces Tribunal Act 2007, we
need to embark upon the journey to peep into the past
precedents and see how this jurisprudential concept: of the
different requirements of military discipline vis-à-vis civil
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discipline affected the remedies which could be availed of by
members of Armed Forces before civil courts.
36. We deal with the various opinions and decisions cited by
Sh.Atul Nanda, learned senior counsel.
37. At the forefront, learned senior counsel had referred to
and had read out extracts from ‗Halsbury’s Laws of England’
4th Edition, Vol.41.
38. We may only point out that the discussion on the subject
in ‗Halsbury’s Laws of England’ is very wide and exhaustive,
but with reference to para 118 of the Commentary, it stands
out that as per the treatise, the bar is not absolute. Pertaining
to what could be called a writ of error or a writ of certiorari
with which we are familiar with in India, it has been opined
that the order of certiorari, to quote: ‗will not, therefore, be
directed to an ecclesiastical Court or to a Court which is not
one of civil jurisdiction, for example a court-martial, unless it is
shown that civil rights have been affected.’ (Underlined
emphasized)
39. Learned senior counsel had relied upon observations in
the decisions reported as 1 Brown 427 (1787) Evelyn Sutton
Vs. George Johnston. 4 F&F 800 Dawkins Vs. Lord Rokevy.
1869 LR QV 888 Dawkins Vs. Paulet. 1898 (1) QB 888 Marks
Vs. Frogley. 1917 (2) KB 504 King Vs. Army Council Ex-Parte
Ravenscorft. 1949 (1) All. ER 242 R. Vs. Secretary of State Ex-
Parte Martyn and 1949 (1) All. ER 373 R. Vs. O.C.Depot Ex-
Parte Elliot; all of which pertain to opinions rendered by the
Judges in England. Two American decisions by judges in
America, reported as 68 US 243 (1863) Ex-Parte Valladingham
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and 346 US 137 (1952-1953) Burns Vs. Wilson were also cited.
One decision of the Supreme Court of Canada reported as
1956 SC Canada 154 Queen Vs. J.R.C.White was also cited.
40. Dealing with the two decisions of the U.S.Courts which
were cited, it may be noted that in Ex-parte Vallandigham, the
prisoner Vallandigham, a resident of the State of Ohio, and a
citizen of the United States, was arrested at his residence and
taken to Cincinnati on 5.5.1863 and imprisoned. On the
following day, he was arraigned before a Military Commission
on the charge of having expressed sympathies for those in
Arms against the Government of the United States, and for
having uttered, in a speech at a public meeting, disloyal
sentiments and opinions with the purported object and purpose
of weakening the power of the Government in its effort for the
suppression of an unlawful rebellion.
41. The case before the Supreme Court of the United States
arose on a petition for a certiorari. The Court was concerned
with the 3rd Article of the U.S.Constitution which is the source
of the foundation of the judicial power of the Supreme Court of
the United States and the inferior Courts as the Congress may,
from time to time, ordain and establish. Noting that appellate
jurisdiction was vested in the U.S.Supreme Court as also the
inferior Courts, it was observed that there was no analogy
between the power given by the Constitution and Law of the
United States to the Supreme Court and other inferior Courts
of the United States, and to the Judges of them, to issue such
process and the prerogative power available with the Courts in
England. The Court refused to review or revise the
proceedings of the Military Commission.
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42. It is apparent that the decision was rendered at a very
nascent stage of the growth of Jurisprudence in the United
States of America. The decision relates to the year 1863. The
observations in the said decision, do bring out a view which
was sought to be propounded by Sh.Atul Nanda, learned senior
counsel, but we must hasten to add that a meaningful perusal
of the decision would reveal that issues of fact, relatable to
jurisdiction and on merits of the decision of the Military
Commission, were sought to be raised in an action akin to a
merit review and the Court declined to exercise such wide
jurisdiction.
43. But, later decisions of the Courts in the United States
throw more light as to how the Jurisprudence grew in the
United States and since one such later decision was relied
upon by Sh.Atul Nanda i.e. the one in Burns’s case (supra), we
note the same. The United States Court of Appeals for the
District of Columbia Circuit relied upon the earlier decision
reported as 137 U.S. SCR 147 Re Grimley where it was
observed that the law which governs a civil court in the
exercise of its jurisdiction over military habeas corpus
applications cannot simply be assimilated to the law which
governs the exercise of that power in other instances. It is sui
generis; it must be so, because of the peculiar relationship
between the civil and military law. But, relevant would it be to
highlight that in the majority opinion, penned by Chief Justice
Vinson, in which opinion Justice Reed, Justice Burton and
Justice Clark joined, at page No.142 of the opinion, a caveat is
to be found, wherein it was observed:-
―We have held before that this does not displace the
civil courts jurisdiction over an application for
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habeas corpus from the military prisoner. Gusik Vs.
Schilder 340 U.S. 128 (1950). But these provisions
do mean that when a military decision has dealt
fully and fairly with an allegation raised in that
application, it is not open to a federal civil court to
grant the writ simply to re-evaluate the evidence.
Whelchel Vs. Mc-Donald 340 U.S. 122 (1950).‖
(Underlined emphasized).
44. On facts, petitioners therein tried separately by Air Force
Court Martial on the Island of Guam were found guilty of
murder and rape and were sentenced to death. The
petitioners had exhausted all remedies available to them
under the Articles of War for review of their convictions by the
Military Tribunals. They then filed petitions for writs of habeas
corpus in the Unites States District Court for the District of
Columbia alleging that they had been denied due process of
law. They charged of being subjected to illegal detention;
under coercion confessions being extorted and counsel of their
choice denied to them; they alleged that the military
authorities had suppressed evidence favourable to them and
had procured perjured testimony against them and lastly
urged that their trials were conducted in an atmosphere of
terror and vengeance, conducive to mob violence instead of
fair-play. The District Court dismissed the applications without
hearing evidence, and without further review, after satisfying
itself that the Court Martial, which tried petitioners had
jurisdiction over their person. The Court of Appeals affirmed
the District Courts Judgment, but after expanding the scope of
review by giving petitioners’ allegation full consideration on
their merits, reviewing in detail the mass of evidence to be
found in the transcripts of the trial and other proceedings
before the Military Court. It was in this backdrop of the past
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litigation, observations made in the judgment cited have to be
understood and needless to state the caveat lodged and as
extracted by us in the preceding para has to be kept in mind,
with further amplification that in the next but one page i.e.
page No.144, Vinson CJ categorically held:-
―These records make it plain that the military courts
have heard petitioners out on every significant
allegations which they now urge. Accordingly, it is
not the duty of the civil courts simply to repeat that
process – to re-examine and re-weigh each item of
evidence of the occurrence of events which tend to
prove or disprove one of the allegations in the
applications for habeas corpus. It is the limited
function of the civil courts to determine whether the
Military has given fair consideration to each one of
these claims. Whelchel Vs.Mc-Donald (supra). We
think they have.‖ (Underlined emphasized).
45. The action in Evelyn Sutton’s case (supra), Dawkins Vs.
Lord Rokeby’s case (supra), Dawkins Vs. Paulet’s case (supra)
and Marks’s (case) supra pertained to actions brought before a
civil Court for damages. The action in Evelyn Sutton’s case
(supra) was by a Captain in the Navy who accused his
Commander-in-Chief of acting in malice, under colour and
pretence, of falsely, maliciously and wrongfully alleging
offences committed by the plaintiff, after at the trial by a Court
Martial, the plaintiff was honorarily acquitted. The action in
Dawkins Vs. Lord Rokeby’s case (supra) was against the
Commander of the Army, on the allegation that on account of
a malicious action initiated against the plaintiff he was falsely
imprisoned and removed from service. Damages were sought.
The action in Dawkins Vs. Paulet’s case (supra) was also for
damages on account of stated libel. The defendant had
addressed a communication to the Adjutant-General of the
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Army reflecting on the character and capacity of the plaintiff; a
Captain in the Coldstream Guards with a request that the
conduct be investigated by a Court of Inquiry in which the
plaintiff lost his commission and was compelled to leave the
regiment. The action in Marks’s case (supra) was on the tort
of assault and false imprisonment by the plaintiff, an Army
Man and subjected to Military Law, at the hands of his superior
officers.
46. Various observations in the decisions aforenoted which
were relied upon which state that civil courts jurisdiction
cannot be invoked to redress grievances arising between
persons subject to military law and that the legislature
excluded by interference of the civil courts must be read to
confine all matter of complaint to the military authorities, have
to be understood with reference to the nature of the actions
brought before the common Courts in England. Suffice would
it be to state that merely because an indictment by a superior
officer failed to hold good at a trial before a military court or
the nature of arrest was found to be wanting or force was used
while arresting a person subject to military discipline, civil
actions were held not maintainable. It may be noted that in
each case active malice was not established at the trial before
the military court, and it was held that it would be
impermissible to have a trial before a common court on the
issue of active malice. We may simply highlight further that
these decisions have no concern and do not relate to the
power of superintendence exercised by superior courts in
England to issue various writs.
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47. The decision in Ex-Parte Ravenscroft’s case (supra) is an
authority on the point that: (i) a civil court will not intervene in
matters relating to military law prescribing rules for the
guidance of officers when equally appropriate remedy was
open to the officer concerned under the Army Act; (ii) the civil
court will not entertain an action relatable to a discretionary
power of the Army Council to assemble a Court of Inquiry; for
the obvious reason no order can be issued to an authority to
exercise a discretionary discretion in a particular way; and (iii)
the remedy by mandamus would not be issued in
circumstances which can make the mandamus in-effective at
the hand of the authority to whom the mandamus is issued.
But relevant would it be to note that Chief Justice Viscount, at
page 511 of the opinion, clearly stated:-
―I do not, however, wish to be taken as deciding that
in no circumstances could this Court issue a writ of
mandamus to the Army Council even on proof of a
breach of duty which the applicant has a right to
enforce. Upon so important and far reaching a
proposition of law I desire to reserve my opinion.‖
48. In the concurring opinion, Ridley J. also observed:-
―If there be a particular duty imposed by statute
which must be obeyed implicitly and which allows no
scope for discretion, matters assume a different
aspect.‖
49. The aforesaid observations have to be read in the
context of the view taken in the said decision when the Court
refused to exercise its power of superintendence and refused
to issue a writ of mandamus to the Army Council commanding
them to cause a Court of Inquiry to re-assemble to hear the
charge, but said that in an appropriate case, judicial review
was permissible by a civil court.
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50. The decision in R. Vs. Secretary of State Ex-Parte Martyn
is a short and a cryptic decision, without much discussion, but
relevant would it be to note that even in said decision it was
observed: ―……. But it is not a matter for this Court, which can
only interfere with military courts and matters of military law
in so far as the civil rights of the soldier or other person with
whom they deal may be affected.‖ The aforesaid observations
make it clear that the Court did not lay down that proceedings
or decisions before military courts or matters of military law
were completely immune to a judicial review before a civil
court.
51. In the decision of R. Vs. O.C.Depot Ex.Parte Elliot (supra),
a deserter arrested abroad and subjected to a Court Martial
was the subject matter of a writ of habeas corpus alleging that
he was not a person subject to military law and thus his
custody was wrongful. The issue in question had been gone
into by the Divisional Court and on merit the detention was
held to be lawful. The matter was thereafter considered by the
King’s Bench Division. The Division Bench found on merits
that the person concerned was a deserter and on merit found
that though released for two months, had received orders of
recall which were disobeyed. Thus, observations in the said
decision which were relied upon by learned counsel are of
hardly any use for the reason the decision shows that the
King’s Bench Division went into the merits and decided against
the prisoner who claimed of not being subject to the military
court by finding as a matter of fact and reasoning that he was
a deserter.
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52. The decision of the Supreme Court of Canada in
J.R.C.White’s case (supra) was on an action by J.R.C.White, a
former member of the Royal Canadian Mounted Police,
questioning his conviction by a Superintendent of the Force for
the misdemeanour of condoning the consumption of
intoxicating liquor by a female juvenile, and of associating with
a female of questionable character and registering at a hotel
under an assumed name. The Court of Appeal for British
Columbia reversed an order by the Court of First Instance
refusing certiorari. The Supreme Court of Canada allowed the
appeal and set aside the judgment of the Court of Appeal and
restored the order of the Court of First Instance. It may be
noted that J.R.C.White was dismissed from the force and had
questioned the verdict on 15 counts all of which related to
what we may call a merit review.
53. No doubt, the Canadian Supreme Court observed that the
Parliament had specified the punishable breaches of discipline
and has equipped the Force with its own courts for dealing
with them; and it needs no amplification to demonstrate the
object of that investment; and that such a court is prima facie
to be looked upon as being the exclusive means by which that
particular purpose is to be attained, but hastened to add:-
―Unless, therefore, the powers given are abused to
such a degree as puts action taken beyond the
purview of the statute or unless the action is itself
unauthorized, that internal management is not to
be interfered with by any superior court in exercise
of its long established supervisory jurisdiction over
inferior tribunals.‖
54. It is also important to note that the Canadian Supreme
Court found that the Court of First Instance had found that the
WP(C) 13360/2009 & connected matters Page 43 of 69
materials furnished by affidavits showed that it could not be
inferred that the proceedings infringed were not supported by
evidence or were outside the authority of the statute or the
underlying principles of judicial process to be deemed annexed
to the legislation concerned. It is apparent that even the
Canadian Supreme Court was conscious of judicial review to be
exercised on the known principles of writ of error or a writ of
certiorari, highlighted by the fact that the Canadian Supreme
Court found that it was not shown that the proceedings
infringed were not supported by any evidence nor was it
shown that any underlying principle of judicial process which
was a part of the legislation concerned was infringed.
55. It would thus be incorrect to urge that world over, the
ordinary civil courts were historically not exercising any kind of
supervisory control over military courts and tribunals.
56. It may be true that in Col.Prithipal Singh Bedi’s case
(supra), way back in the year 1982, the Supreme Court
expressed an opinion that a single judicial review forum was
desirable not only qua decisions and sentences at a Court
Martial but even to adjudicate service disputes between
members of an Armed Force and the Force, but it has to be
kept in mind, as would be noticed hereinafter, that the law
relating to judicial review by superior courts being a basic
feature of the Constitution had yet to be developed. But that
apart, it needs to be highlighted that in para 45 of its decision,
while expressing the desirability to constitute a single judicial
review forum for members of the Armed Forces, the Supreme
Court hedged the words: ‗which must truly be a judicial review
forum’.
WP(C) 13360/2009 & connected matters Page 44 of 69
57. We shall be dealing with what has been interpreted to be
a truly judicial review forum in the context of denuding High
Court jurisdiction under Article 226 of the Constitution of India
with reference to the decision of the Supreme Court reported
as UOI Vs. R.Gandhi 2010 (5) SCALE 514 and would humbly
request the read of our opinion to be patient with us. We
assure that we shall so revert.
58. We have noted hereinabove, in para 15, the legislative
intent which could be traced to the 169th report of the Law
Commission titled: ‗Amendment of Army, Navy and Air Force
Acts – April 1999′ and would simply highlight that the Law
Commission, vide para 5.1.1 of its report, recommended that
the proposed tribunal should not be a totally Civil Appellate
Tribunal (as has been provided in the United Kingdom) opining
that, in the Indian context this may not be conducive to the
discipline of the Armed Force and the Law Commission
suggested a hybrid Tribunal consisting of Civilian Judges and
other members drawn from the retired Armed Force Personnel.
Indeed, as noted by us in para 19 above, the Armed Force
Tribunal which has been constituted under the Act is a hybrid
Tribunal consisting of civilian Judges and retired Members
drawn from the Armed Forces. We highlight that the
appointment of Members of the Tribunal is by the Executive
albeit with consultation with the Chief Justice of India. The
legal consequence of this would be discussed by us a little
later when we analyze the decision of the Supreme Court in
UOI Vs. R.Gandhi (supra).
59. The discussion during the Constituent Assembly Debates
on 16.10.1949 pertaining to draft Article 112 of the draft
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constitution which ultimately resulted in Article 136 of the
Constitution of India as we find and Article 203 of the draft
constitution which finds itself as Article 227 of the Constitution
of India is of importance on the subject and thus we spend a
little time on the subject.
60. Sh.T.T.Krishnamachari moved an amendment No364 and
suggested Article 112 as proposed to be re-drafted and clause
4 to be inserted after clause 3 to Article 203 of the draft of the
proposed constitution as under:-
―112. (1) 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) of this article 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.‖
X X X
―(4) Nothing in this Article shall be deemed to extend
the powers of superintendence of a High Court over
any Court or Tribunal constituted by or under any law
relating to the Armed Forces.‖
61. Prof.Shibban Lal Saxena immediately rose to his feet
stating that he wish to bring a charge of breach of faith against
Dr.Ambedkar in this matter. He stated that sometime ago he
had tabled an amendment to Article 112 in which he had
specifically desired that provision should be made that persons
sentence to death by Court Martial should be able to appeal to
the Supreme Court and Dr.Ambedkar had assured that such
persons are covered by Article 112 and the Supreme Court
could take notice of such persons under its said powers. He
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raised an issue of probably the discussion in the House being
reported in the press and the Defence Department trying to
strengthen itself and Mr.T.T.Krishnamachari extending a
helping hand to the Defence Department. Stating that this
was not fair as he had withdrawn his amendment on the
assurance that the law protected members of an Armed Force
against wrong decisions at a Court Martial. He highlighted that
after the Second World War, in Britain a Commission was
appointed to study the administration of Military Court Martials
and recommended procedures to be made more civilized and
that in the name of discipline people should not be butchered.
He concluded his protest by stating that not only considered
the provision unfair but against the promise given to the
House by Dr.Ambedkar.
62. After Sh.R.K.Shidhava, Sh.B.Das and Pandit Thakur Das
Bhargava made interjections, Dr.B.R.Ambedkar responded in
the following words:-
―Mr.President Sir, in view of the observations made
by my hounorable Friend, Prof.Shibban Lal Saksena,
it has become incumbent upon me to say something
in relation to the proposed article moved by my
honourable Friend, Mr.T.T.Krishnamachari. It is
quite true that on the occasion when we considered
article 112 and the amendment moved by my
honourable Friend, Prof. Shibban Lal Saksena. I did
say that under article 112 there would be
jurisdiction in the Supreme Court to entertain an
appeal against any order made by a Court-Martial.
Theoretically that proposition is still correct and
there is no doubt about it in my mind. But what I
forgot to say is this: That according to the rulings of
our High Courts as well as the rulings of the British
courts including those of the Privy Council, it has
been a well recognized principle that civil courts,
although they have jurisdiction under the statute will
WP(C) 13360/2009 & connected matters Page 47 of 69
not exercise that jurisdiction in order to disturb any
finding or any decision given or order made by the
Court-martial. I do not wish to go into the reason
why the civil courts of superior authority, which
notwithstanding the fact that they have this
jurisdiction have said that they will not exercise that
jurisdiction; but the fact is there and I should have
thought that if our courts in India follow the same
decision which has been given by British courts – the
House of Lords, the King’s Bench Division as well as
the Privy Council and if I may say so also the
decision given by our Federal Court in two or three
cases which were adjudicated upon by them – there
would be no necessity for clause (2); but
unfortunately the Defence Ministry feels that such
an important matter ought not to be left in a
condition of doubt and that there should be a
statutory provision declaring that none of the
superior civil courts whether it is a High Court or the
Supreme Court shall exercise such jurisdiction as
against a court or tribunal constituted under any law
relating to the Armed Forces.
This question is not merely a theoretical question
but is a question of great practical moment because
it involves the discipline of the Armed Forces. If
there is anything with regard to the armed forces, it
is the necessity of maintaining discipline. The
Defence Ministry feel that if a member of the armed
forces can look up either to the Supreme Court or to
the High Court for redress against any decision
which has been taken by a court or tribunal
constituted for the purpose of maintaining discipline
in the armed forces, discipline would vanish. I must
say that this is an argument against which there is
no reply. That is why clause (2) has been added in
article 112 by this particular amendment and a
similar provision is made in the provisions relating to
the powers of superintendence of the High Courts.
That is my justification why it is now proposed to put
in clause (2) of Article 112.
WP(C) 13360/2009 & connected matters Page 48 of 69
I should, however, like to say this that clause (2)
does not altogether take away the powers of the
Supreme Court or the High Court. The law does not
leave a member of the armed forces entirely to the
mercy of the tribunal constituted under the
particular law. For, notwithstanding clause (2) of
article 112, it would still be open to the Supreme
Court or to the High Court to exercise jurisdiction, if
the court martial has exceeded the jurisidiction
which has been given to it or the power conferred
uon it by the law relating to armed forces. It will be
open to the Supreme Court as well as to the High
Court to examine the question whether the exercise
of jurisdiction is within the ambit of the law which
creates and constitutes this court or tribunal.
Secondly, if the court-martial were to give a finding
without any tribunal. Secondly, if the court martial
were to give a finding without any evidence, then,
again, it will be open to the Supreme Court as well
as the High Court to entertain an appeal in order to
find out whether there is evidence. Of course, it
would not be open to the High Court or the Supreme
Court to consider whether there has been enough
evidence. That is a matter which is outside the
jurisdiction of either of these Courts. Whether there
is evidence or not, that is a matter which they could
entertain. Similarly, if I may say so, it would be
open for a member of the armed forces to appeal to
the courts for the purpose of issuing prerogative
writs in order to examine whether the proceedings
of the court martial against him are carried on under
any particular law made by Parliament or whether
they were arbitrary in character. Therefore, in my
opinion, this article, having regard to the difficulties
raised by the Defence Ministry, is a necessary
article. It really does not do anything more but give
a statutory recognition to a rule that is already
prevalent and which is recognized by all superior
courts.‖ (emphasis supplied)
63. The aforenoted illuminating debate at the Constitution
Assembly as afore extracted, should in our opinion, settle the
controversy sought to be raised by Sh.Atul Nanda learned
senior counsel. Two issues would probably be settled. First
WP(C) 13360/2009 & connected matters Page 49 of 69
that the drafters of the Constitution clearly understood that
historically, jurisprudence in civilized democracies recognized
power of judicial review over decisions and sentences of Court
Martials and notwithstanding insertion of Clause 4 in Article
227 of the Constitution of India, the Constituent Assembly
recognized the power of judicial superintendence over Court
Martials and this position, as would be noted by us
hereinunder, came to be recognized by the Supreme Court,
even without a reference to the aforenoted debate.
64. Indeed, in the decision reported as AIR 1990 SC 1984
S.N.Mukherjee Vs. UOI, in para 41 the Supreme Court observed
as under:-
―41. 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 have resulted in
denial of the fundamental rights guaranteed under
Part III of the Constitution or if the said proceedingsWP(C) 13360/2009 & connected matters Page 50 of 69
suffer from a jurisdictional error or any error of law
apparent on the face of the record.‖
65. A Division Bench of this Court, in the decision reported as
58 (1995) DLT 339 Ex.Maj.R.S.Budhwar Vs. UOI & Ors.,
surveying as many as 42 decisions on the subject and noting
the decision in S.N.Mukherjee’s case (supra) held in para 28 of
the report as under:-
―28. The jurisdiction of this Court under Article 226
is, therefore, defined and is limited to the extent of
finding it whether there is an error of jurisdiction and
it is a case of total lack of evidence. This Court, as
has been consistently held, does not sit as a Court of
Appeal. In case legal evidence was available on
which a finding could be given, the sufficiency or
otherwise was for the Authority to decide and this
Court cannot substitute its opinion for that of Court-
Martial.‖
66. The Constitutional Bench decision of the Supreme Court
reported as 1973 (4) SCC 225 Keshwananda Bharti Vs. State of
Kerala & Anr. laid down the principle of the basic structure of
the Constitution being inviolable and we may hasten to add
that though the Bench did not specifically hold that judicial
review is a part of basic structure of the Constitution but
expressly held that Rule of Law is essentially a part of the
basic structure. Judicial review was however held to be an
integral part of the Constitution. We may also note that Justice
Y.V.Chandrachud (as His Lordship then was), in the decision
reported as 1975 Supp. SCC 1 Indira Nehru Gandhi Vs. Raj
Narain & Anr. held in the context of elections to elect
representatives to the Lok Sabha, that judicial review cannot
be considered to be a part of the basic structure of the
Constitution. However, a meaningful reading of the opinion of
Y.V.Chandrachud (CJ) in the decision reported as 1980 (3) SCC
WP(C) 13360/2009 & connected matters Page 51 of 69
625 Minerva Mills Ltd. & Ors. Vs. UOI & Ors. would reveal that
His Lordship held judicial review with respect to legislative
actions as a part of the basic structure of the Constitution. The
separate opinion of P.N.Bhagwati, J. (as His Lordship then was),
also upheld judicial review with respect to legislative actions
as a part of the basic structure of the Constitution, but His
Lordship hedged the opinion with a caveat in the following
words:-
―Para 87……..I am of the view that if there is one
feature of our Constitution which, more than any
other, is basic and fundamental to the maintenance
of democracy and the rule of law, it is the power of
judicial review and it is unquestionably, to my mind,
part of the basic structure of the Constitution. Of
course, when I say this I should not be taken to
suggest that effective alternative institutional
mechanisms or arrangements for judicial review
cannot be made by Parliament. (Underlined
emphasized).‖
67. In his separate opinion in the decision reported as 1981
(2) SCC 362 Waman Rao & Ors. Vs. UOI, Bhagwati, J. (as His
Lordship then was) in para 64 of the opinion reiterated that
para 77 and paras 80 to 102 of his opinion in Minerva Mills’
case (supra) be read as part of his opinion and thereby
reiterated the view that notwithstanding judicial review being
a feature basic to the Constitution, nothing prevented
Parliament to enact a law having arrangements for judicial
review through alternative institutional mechanisms.
68. The aforesaid line of reasoning adopted by Bhagwati, J.
was applied in full vigour in the decision reported as 1987 (1)
SCC 124 S.P.Sampath Kumar Vs. UOI & Ors. in para 3 whereof
it was observed that although power of judicial review is an
WP(C) 13360/2009 & connected matters Page 52 of 69
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 and thus
judicial review cannot be altogether abrogated by Parliament,
it can certainly, without in any way violating the basic
structure doctrine, set up alternative institutional mechanisms
or arrangements for judicial review. But, to our mind, His
Lordship made a very broad and a sweeping statement in said
para 3 by observing that this view was the majority view of the
Judges who decided Minerva Mills’ case (supra). The
observations in para 3: It is undoubtedly true that my
judgment in Minerva Mills Ltd. case was a minority judgment
but so far as this aspect is concerned, the majority Judges also
took the same view and held that judicial review is a basic and
essential feature of the Constitution and it cannot be
abrogated without affecting the basic structure of the
Constitution and it is equally clear from the same decision that
though judicial review cannot be altogether abrogated by
Parliament it can certainly, without in any way violating the
basic structure doctrine set up effective alternative
institutional mechanisms or arrangements for judicial review.
69. The majority opinion penned by Ranganatha Misra, J. (as
his Lordship then was) held that effective alternative
institutional mechanisms or arrangements for judicial review
can be made by Parliament and as long as a Tribunal met the
mandate of being a real substitute for the High Court, not only
in form but even in content.
70. The concurring opinions of the Constitution Bench in
S.P.Sampath Kumar’s case laid the foundation that the basic
WP(C) 13360/2009 & connected matters Page 53 of 69
feature of the Constitution of judicial review could be
preserved through alternative dispute resolution mechanism
as long as the same were a de jure and de facto substitute for
High Courts.
71. Two decisions pronounced in the year 1993 incisively
reviewed the legal position with reference to judicial review
exercised by superior courts in the Indian context i.e. the High
Courts exercising power under Article 226 and Article 227 of
the Constitution of India. The first was a 3 Judge bench
decision of the Supreme Court reported as 1993 (4) SCC 119
R.K.Jain Vs. UOI and the second being a full Bench decision of
the Andhra Pradesh High Court reported as 1993 (3) ALT 471
Sakinala Hari Nath Vs. State of A.P. The main opinion in
R.K.Jain’s case, penned by K.Ramaswamy, J. with which
Ahmadi, J. and Punchhi, J. concurred, in paras 66, 67 and 76
observed as under:-
―66. In S.P.Sampath Kumar Vs. 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
WP(C) 13360/2009 & connected matters Page 54 of 69
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 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 and 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 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 Vs. 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
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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.P.Chopra Vs.
Union of India merely followed the ratio of Sampath
Kumar.
67. The tribunals set up under Articles 323-A and 323-B
of the Constitution or under an Act of legislature are
creatures of the Statute and in no case can claim the
status as Judges of the High Court or parity or as
substitutes. However, the personnel appointed to hold
those offices under the State are called upon to
discharge judicial or quasi-judicial powers. So they must
have judicial approach and also knowledge and
expertise in that particular branch of constitutional,
administrative and tax laws. The legal input would
undeniably be more important and sacrificing the legal
input and not giving it sufficient weightage and teeth
would definitely impair the efficacy and effectiveness of
the judicial adjudication. It is, therefore, necessary that
those who adjudicate upon these matters should have
legal expertise, judicial experience and modicum of legal
training as on many an occasion different and complex
questions of law which baffle the minds of even trained
judges in the High Court and Supreme Court would arise
for discussion and decision.
X X X
76. Before parting with the case it is necessary to
express our anguish over the ineffectivity of the
alternative mechanism devised for judicial reviews. The
Judicial review and remedy are fundamental rights of the
citizens. The dispensation of justice by the tribunals is
much to be desired. We are not doubting the ability of
the members or Vice-Chairmen (non-Judges) who may
be experts in their regular service. But judicial
adjudication is a special process and would efficiently be
administered by advocate Judges. The remedy of appeal
by special leave under Article 136 to this Court also
proves to be costly and probative and far-flung distance
too is working as constant constraint to litigant public
who could ill afford to reach this Court. An appeal to a
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Bench of two Judges of the respective High Courts over
the orders of the tribunals within its territorial
jurisdiction on questions of law would assuage a growing
feeling of injustice of those who can ill afford to
approach the Supreme Court. Equally the need for
recruitment of members of the Bar to man the Tribunals
as well as the working system by the tribunals need
fresh look and regular monitoring is necessary. An
expert body like the Law Commission of India would
made an in-depth study in this behalf including the
desirability to bring CEGAT under the control of Law and
Justice Department in line with Income Tax Appellate
Tribunal and to make appropriate urgent
recommendations to the Government of India who
should take remedial steps by an appropriate legislation
to overcome the handicaps and difficulties and make the
tribunals effective and efficient instruments for making
Judicial review efficacious, inexpensive and satisfactory.‖
72. Suffice would it be to state that the observations of
K.Ramaswamy, J. in R.K.Jain’s case certainly struck a
discordant note with respect to the view taken in S.P.Sampath
Kumar’s case (supra) and the observations in para 76 highlight
judicial adjudication being a special process efficiency of which
could be best maintained by advocate Judges as also remedy
of appeal by Special Leave to the Supreme Court being cost
prohibitive compelling citizens from far-flung areas to
approach the Supreme Court and hence the desirability of a
remedy before a Bench at the respective High Courts.
73. In Sakinala Hari Nath’s case the Full Bench of the Andhra
Pradesh High Court declared Article 323A(2)(d) of the
Constitution of India as unconstitutional to the extent it
empowered Parliament, byelaw, to exclude the jurisdiction of
the High Court under Article 226 of the Constitution of India as
also declared Section 28 of the Administrative Tribunals Act
1985, to the extent it divested the High Court of its jurisdiction
WP(C) 13360/2009 & connected matters Page 57 of 69
under Article 226 as unconstitutional. In so declaring as
aforenoted the Full Bench of the Andhra Pradesh High Court
referred to various decisions which held that Tribunals with
trappings of a court are not courts in the strict sense of
exercising judicial power and that Constitutional Courts are the
only guardians to ensure and safeguard the enduring values
which the Constitution seeks to preserve. It was held that
Tribunals may have the authority of law to pronounce upon
valuable rights and may act in a judicial manner, but they
cannot be treated as equivalent to ordinary Courts of Civil
judicature.
74. The 7 Judge Constitution Bench decision reported as
1997 (3) SCC 261 L.Chandra Kumar Vs. UOI completed the
journey, root whereof could be traced to the Full Bench
decision of the Andhra Pradesh High Court in Sakinala Hari
Nath’s case and the view taken in R.K.Jain’s case. 3 broad
issues, being: whether the power conferred upon Parliament or
the State Legislatures by sub-clause (d) of Clause 2 of Article
323A or by sub-clause (d) of Clause 3 of Article 323B of the
Constitution, totally exclude the jurisdiction of all Courts,
except that of the Supreme Court under Article 136 run
counter to the power of judicial review conferred on the High
Courts under Article 226 and 227; whether the Tribunals
constituted either under Article 323A or Article 323B of the
Constitution possess the competence to test the constitutional
validity of a statutory provision/rule; and whether the
Tribunals, as they are functioning at present, can be said to be
effective substitutes for the High Courts in discharging the
power of judicial review. Considering 26 decisions, most of
them penned and authored by Courts in India and a few
WP(C) 13360/2009 & connected matters Page 58 of 69
abroad, the unanimous verdict was that under the Indian
Constitutional Scheme the Supreme Court and the High Courts
are the sole repositories of the power of judicial review and
that notwithstanding judicial power being capable of being
vested in a Tribunal, the power of judicial review of the High
Court could not be excluded even by a Constitutional
amendment. The Supreme Court categorically upheld the
underlying theme of the Full Bench decision of the Andhra
Pradesh High Court that the power of judicial review is a basic
feature of our Constitution and the aspect of the power of
judicial review is vested exclusively in the constitutional courts
i.e. the High Court and the Supreme Court. In paras 62, 63,
64, 65, 66, 67, 68, 69, 71, 72, 77, 78 and 80, the Constitution
Bench discussed and analyzed the 5 majority opinions in
Keshwananda Bharti’s case and as subsequently applied in
Indira Nehru Gandhi’s case, Minerva Mills’ case and R.K.Jain’s
case to bring home the point that the minority view i.e.
P.N.Bhagwati, J.’s view in Minerva Mills’ case as reflected by
the 5 Judge Constitution Bench opinion in S.P.Sampath
Kumar’s case was not the correct view and that the correct
legal position would be that whereas Tribunals can perform a
supplemental as opposed to a substitutional role by
empowering Tribunals with judicial power but the power of
judicial review, which is a part of the basic structure of the
Constitution, cannot be taken away from the High Courts
which have the power to exercise judicial superintendence
over the decisions of all Courts and Tribunals within their
respective jurisdiction. In para 91 of the decision, the
Constitution Bench affirmatively held that the decisions of
Tribunals, whether created pursuant to Article 323A or Article
WP(C) 13360/2009 & connected matters Page 59 of 69
323B of the Constitution would be subject to the High Courts
writ jurisdiction under Article 226 and Article 227 of the
Constitution.
75. A words needs to be penned by us with reference to para
96 of the decision in L.Chandra Kumar’s case, with reference
whereto Sh.Atul Nanda learned senior counsel for the
respondents urged that if not qua Article 226 of the
Constitution of India, qua Article 227 of the Constitution of
India, it would be permissible to denude High Court’s
jurisdiction under said Article. The observations relied upon
read: ’96. It has been brought to our notice that one reason
why these Tribunals have been functioning inefficiently is
because there is not authority charge with supervising and
fulfilling their administrative requirements. To this end, it is
suggested that the Tribunals be made subject to the
supervisory jurisdiction of the High Courts within whose
territorial jurisdiction they fall. We are, however, of the view
that this may not be the best way of solving the problem. We
do not think that our constitutional scheme requires that all
adjudicatory bodies which fall within the territorial jurisdiction
of the High Courts should be subject to their supervisory
jurisdiction’.
76. Suffice would it be to state that the said observations
pertain to administrative supervisory jurisdiction of a High
Court over Courts and Tribunals functioning within the territory
of the High Court and do not relate to judicial supervisory
jurisdiction.
77. In the decision reported as AIR 2007 SC 861 I.R.Coelho
Vs. State of Tamilnadu, a 9 Judge Bench of the Supreme Court,
WP(C) 13360/2009 & connected matters Page 60 of 69
in its unanimous opinion reiterated that the power of judicial
review is a basic feature of the Constitution and being a
constituent power cannot be abrogated by judicial process or
interpretation (refer para 41).
78. The latest pronouncement of the Supreme Court reported
as 2010 (5) SCALE 514 UOI Vs. R.Gandhi has very succinctly, in
para 12 and 13 brought out the difference in the powers
exercised by Courts and Tribunals and briefly stated reiterates
the view that the sovereign power of the State to administer
justice and in particular the power exercised by superior courts
of that of judicial review can never be entrusted to Tribunals.
79. Another illuminating decision tracing the historical source
of power of supervisory jurisdiction by superior courts in India
is the decision reported as 2003 (6) SCC 675 Suryadev Rai Vs.
Ram Chandra Rai & Ors. Dealing with the amendment to
Section 115 CPC by Act No.46 of 1999 and its impact on the
jurisdiction of the High Court under Article 226 and Article 227
of the Constitution of India, the Supreme Court held that the
power of the superior court to issue a writ of error was
historically treated as the inherent power of superior courts in
common law countries. In para 29 of the decision it was held
as under:-
―29. The Constitution Bench in L.Chandra
Kumar v. Union of India dealt with the nature of
power of judicial review conferred by Article 226 of
the Constitution and the power of
superintendence conferred by Article 227. It was
held that the jurisdiction conferred on the
Supreme Court under Article 32 of the Constitution
and on the High Courts under Articles 2226 and
227 of the Constitution is a part of the basic
structure of the Constitution, forming its integral
WP(C) 13360/2009 & connected matters Page 61 of 69
and essential feature, which cannot be tampered
with much less taken away even by constitutional
amendment, not to speak of a parliamentary
legislation.‖
80. The decision in Suryadev Rai’s case also brings out
another interesting facet of the growth of Jurisprudence with
respect to the power conferred by Article 226 of the
Constitution vis-à-vis the power conferred under Article 227 of
the Constitution of India; and notwithstanding the commonly
perceived view that Article 226 of the Constitution of India
preserves to the High Court the power to issue writs and thus
vis-à-vis Tribunals, authorities and persons, with respect to
writs of certiorari, the power would be limited, as held by the
Supreme Court in the decision reported as AIR 1955 SC 233
Harivishnu Kamath Vs. Ahmad Ishaque, to (a) correct errors of
jurisdiction; (b) correct illegality in the exercise of its
undoubted jurisdiction by the Tribunal; (c) correct such error
which is a manifest error apparent e.g. when it is based on
clear ignorance or disregard of the provision of law or is a
patent error as against a wrong; (d) act not as in appellate
jurisdiction but exercise supervisory jurisdiction, one
consequence whereof being the Court will not review findings
of facts even if erroneously reached by the Tribunals, power
under Article 227 being supervisory power and in that sense
has width and vigour unprecedented, the distinction between
the two jurisdictions stands almost obliterated. In para 25 it
was so observed and with the justification why it has become
customary for the lawyers labeling their petitions as one
common under Article 226 and Article 227 of the Constitution
of India.
WP(C) 13360/2009 & connected matters Page 62 of 69
81. Whereas it can be safely said that proceedings under
Article 226 are in the exercise of the original jurisdiction of the
High Court, proceedings under Article 227 of the Constitution
are not original but supervisory proceedings.
82. The Jurisprudence on the subject would reveal that the
expression ‗administration of justice’ is always understood to
mean the exercise of judicial power of the State to maintain
and uphold rights. Judicial power means the power which
every sovereign authority must of necessity have, to decide
controversies between its subject, or between itself and its
subjects. Though, with the growth of civilization and the
problems of modern life, a large number of administrative
Tribunals have come into existence and notwithstanding these
Tribunals act in a judicial manner, but they are not part of the
ordinary Courts of Civil Judicature. These Tribunals may share
the exercise of the judicial power of the State, but cannot
exercise the power of judicial review. The decision of the
Supreme Court reported as 1962 (2) SCR 339 Harinagar Sugar
Mills Vs. Shyam Sundar Jhunjhunwala brings out the facet of
Tribunals exercising judicial power but not being courts and
hence capable of being entrusted with the judicial power of the
State but not the sovereign power of the State of judicial
review, which power is reserved for superior courts. The
decision reported as 1992 Supp. (2) SCC 651 Kihoto Hollohan
Vs. Zachillhu & Ors., dealing with what is commonly known as
the anti-defection law, categorically held that even where a
statute gives finality to a decision, the same would not give
immunity to the decision from a judicial review.
WP(C) 13360/2009 & connected matters Page 63 of 69
83. We had promised to discuss the decision of the Supreme
Court in UOI Vs. R.Gandhi (supra).
84. The Constitution Bench of the Supreme Court was
considering issues relating to ‗The National Company Law
Tribunal’ and ‗The National Company Law Appellate Tribunal’.
In view of the decision in L.Chandra Kumar’s case (supra), and
recognizing that judicial review by Constitutional Courts was
recognized as a basic feature of the Constitution, in para 12
onwards the Court discussed the difference between Courts
and Tribunals followed by a discussion in para 17 onwards on
the separation of executive and judicial powers of the State.
Discussing in para 24 onwards, the question: Whether the
Government can transfer the judicial functions traditionally
performed by Courts to Tribunals? In para 32 it was noted that
notwithstanding the Constitution contemplating judicial power
being exercised both by Courts and Tribunals held that this
must accept the powers and jurisdictions vested in superior
courts by the Constitution.
85. Discussing the argument in favour of Tribunals the
Supreme Court noted that since Court functions under archaic
and elaborate procedural laws and highly technical evidence
law and with a view to ensure fair play as also avoidance of
judicial error, procedural laws provide for appeals, revision and
reviews resulting in frivolous and vexatious preliminary
objections, pushing into background the main issues resulting
in the inevitable delays which lead to frustration and
dissatisfaction and hence a user friendly Tribunal was
welcomed, but noted that the dependence of Tribunals on the
sponsoring or the parent department for infrastructural
WP(C) 13360/2009 & connected matters Page 64 of 69
facilities and or personnel undermines the independence of
the Tribunals and this draw back substantially takes away the
glitter from the positive features of tribunalization. It was
noted that the Leggatt Committee chaired by Sir Andrew
Laggatt had submitted a report to the Lord High Chancellor of
Great Britain in March 2001 recommending that if Tribunals
had to be a true successor of ordinary civil courts and not
become ‗Bureaucratic Boards’ it would be best served if there
administrative support is provided by the ‗Lord Chancellor’s
Department’. This would be, in our opinion the signature tune
of the ethos expressed by the Supreme Court in para 45 of the
decision in Lt.Col.Prithipal Singh Bedi’s case (supra) when the
Supreme Court observed that the Tribunal it was suggesting
should ‗Truly be a Judicial Review Forum’.
86. Even prior to the Constitution of India being
promulgated, superior courts constituted by the Letters Patent
Charter in India and other dominions of the Crown used to
issue prerogative writs to courts and tribunals subordinate to
the Chartered High Courts save and except where appellate or
revisional remedies were created by statute. The writ of error,
as called today by the name of certiorari used to be issued to
courts and tribunals and the origin of the said power to issue
prerogative writs could be traced to the theory that the king
being the paramount judicial authority and the judges being
only the king’s deputies, any exercise of unauthorized
jurisdiction by the Judges was considered as an usurpation of
the royal prerogative. The August royal personage could not
of course tolerate transgression of jurisdictional limits to the
incumbents of the office of Judgeship and had therefore to
exercise his controlling power over them to keep them within
WP(C) 13360/2009 & connected matters Page 65 of 69
the bounds of their authority. As it developed, the writ of
certiorari was the process by which the King’s Bench Division
in the exercise of its superintending power over inferior
jurisdictions, requires the Judges or officers of such jurisdiction
to certify or send proceedings before them into the King’s
Bench Division, whether for the purposes of examining into the
legality of such proceedings, or for giving fuller or more
satisfactory effect to them than could be done by the Court
below.
87. Recognizing efficacious alternative remedies available
and on the principle of comity, prerogative writs were not
issued where the error was capable of being rectified at an
appellate or a revisional jurisdiction.
88. We have noted hereinabove that a limited contempt
jurisdiction has been vested in the Tribunal which does not
empower the Tribunal to enforce its decisions under contempt
jurisdiction. We note that there is no Section in the Act
empowering the Tribunal to execute its orders, though we find
that under Rule 25 of the Armed Forces Tribunal (Procedure)
Rules 2008 it is stipulated that nothing in the Rules shall be
deemed to limit or otherwise affect the inherent powers of the
Tribunal to make such orders or give such directions as may
be necessary or expedient to give effect to its orders or to
prevent abuse of its process or to secure the ends of justice. It
would be debatable whether Rule 25 recognizes the sui
generis power of contempt of the Tribunal. If not, it would be
an anomaly to hold that the Armed Forces Tribunal is not a
Tribunal subordinate to the High Court for the reason if held
otherwise, a High Court would have no power under its
WP(C) 13360/2009 & connected matters Page 66 of 69
contempt jurisdiction to enforce an order passed by the Armed
Forces Tribunal, and if the Tribunal would have no power to
enforce its order, it would be a strange situation where a party
would be left without a remedy. But we refrain from
expanding on this aspect of the matter for the reason learned
counsel for the parties had not addressed any submissions on
this point and thus we simply note a point which does arise for
consideration as it is relevant to the issue at hand and leave it
at that.
89. To summarize, the position would be that the Armed
Forces Tribunal, being manned by personnel appointed by the
Executive, albeit in consultation with the Chief Justice of India
cannot be said to be truly a judicial review forum as a
substitute to High Courts which are constitutional courts and
the power of judicial review, being a basic feature of the
Constitution, under Article 226 and Article 227 of the
Constitution of India is unaffected by the Constitution of the
Armed Forces Tribunal. Further, Article 227(4) of the
Constitution of India takes away only the administrative
supervisory jurisdiction of High Court over the Armed Forces
Tribunal and does not impact the judicial supervisory
jurisdiction over the Armed Forces Tribunal. Thus, decisions by
the Armed Forces Tribunal would be amenable to judicial
review by High Court under Article 226 as also Article 227 of
the Constitution of India.
90. We may note that the view which we have taken finds a
precedent in a Division Bench decision of the Kerala High Court
reported as 2010 (4) KLT 611 Joby Varghese Vs. Armed Forces
Tribunal.
WP(C) 13360/2009 & connected matters Page 67 of 69
91. The preliminary question pertaining to the maintainability
of the writ petitions is accordingly answered in favour of the
petitioners and it is held that the above captioned writ
petitions against the decisions/orders passed by the Armed
Forces Tribunal are maintainable.
92. W.P.(C) No.3441/2010 Ex.Hav.Maharam Vs.UOI & Ors.,
W.P.(C) No.2667/2010 Col.Sanjay Kumar Vs. UOI & Ors.,
W.P.(C) No.5794/2010 Hav.Reiji Kumar Vs. UOI & Ors., W.P.(C)
No.654/2010 Lt.Col.Harpreet Singh Vs. UOI & Ors., W.P.(C)
No.273/2010 Risaldar Nabab Singh Vs. UOI & Ors., W.P.(C)
No.5189/2010 Naik Prabhu Dayal Sharma Vs. UOI & Ors.,
W.P.(C) No.4926/2010 Ex.Sep.Inder Singh Vs. UOI & Ors.,
W.P.(C) No.4699/2010 Rameswar Prashad Sharma Vs. UOI &
Ors., W.P.(C) No.4887/2010 Smt.Surjeet Kaur Vs. UOI & Ors.,
W.P.(C) No.4669/2010 Ex.Sigmn Ganga Ram Sharma Vs. UOI &
Ors., W.P.(C) No.4524/2010 Sub.Maj.Kiran Pal Singh Vs. UOI &
Ors., W.P.(C) No.4417/2010 Lt.Cdr.G.S.Beniwal Vs. UOI & Ors.,
W.P.(C) No.3841/2010 Ex.Sep.Ram Swarup Vs. UOI & Ors.,
W.P.(C) No.3836/2010 Indra Singh Solanki Vs. UOI & Ors. and
W.P.(C) No.5206/2010 Ex.Sep.Rai Singh Vs. UOI & Ors. are
directed to be listed for preliminary hearing on 29.4.2011.
93. W.P.(C) No.6066/2010 Ex.Maj.Bhagwan Singh Vs.UOI &
Ors., W.P.(C) No.6183/2010 Ex.Brig.R.P.Singh Vs. UOI & Ors.,
W.P.(C) No.7018/2010 G.D.Banarasi Lal Vs. UOI & Ors., W.P.(C)
No.7040/2010 Ex.Capt.Sewa Ram Nigial Vs. UOI & Anr. and
W.P.(C) No.6061/2010 Ex.Maj.Gen.P.S.K.Chaudhary Vs. UOI &
Ors. shall be listed for preliminary hearing on 4.7.2011.
94. W.P.(C) No.4652/2010 GNR.B.N.Khente Vs. UOI & Ors.,
W.P.(C) No.5090/2010 Ex.Col.Harvinder Singh Kohli Vs. UOI &
WP(C) 13360/2009 & connected matters Page 68 of 69
Ors., W.P.(C) No.5156/2010 Naib Sub.Vijay Bahadur Singh Vs.
UOI & Ors., W.P.(C) No.3828/2010 Ex.Gnr.Naresh Kumar Vs.
UOI & Ors. and W.P.(C) No.3578/2010 Brig.V.S.Sukhdial Vs. UOI
& Ors. shall be listed for preliminary hearing on 5.7.2011.
95. W.P.(C) No.5764/2010 Lt.Col.Rajeev Bhatt Vs. Chief of
Army Staff & Ors., W.P.(C) No.1918/2010 Om Prakash Vs. UOI
& Ors., W.P.(C) No.3439/2010 Lt.Cdr.Narvir Singh Vs. Union of
India & Ors., W.P.(C) No.3086/2010 Wing.Cdr.S.Yadav Vs.
Union of India & Ors. and W.P.(C) No.3405/2010
SqnLdr.Dr.Usha Atri Vs. Union of India & Ors. shall be listed for
preliminary hearing on 6.7.2011.
96. W.P.(C) No.7039/2010 Gunner Milkhi Ram Vs. Union of
India & Ors., W.P.(C) No.7041/2010 Gunner Sat Pal Vs. Union of
India & Ors., W.P.(C) No.7042/2010 Gunner Hari Singh Vs.
Union of India & Ors. and W.P.(C) No.8298/2010
Ex.Sep.Bhagwan Singh Vs. Union of India & Anr. shall be listed
for preliminary hearing on 7.7.2011.
97. W.P.(C) No.13360/2009 Col.A.D.Nargolkar Vs. Union of
India & Ors. and W.P.(C) No.13367/2009 Col.A.D.Nargolkar Vs.
Union of India & Ors. shall be listed for preliminary hearing on
8.7.2011.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
APRIL 26, 2011
dk/mm
WP(C) 13360/2009 & connected matters Page 69 of 69