{"id":125947,"date":"2011-04-26T00:00:00","date_gmt":"2011-04-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/colonel-a-d-nargolkar-vs-union-of-india-ors-on-26-april-2011"},"modified":"2017-12-14T05:21:28","modified_gmt":"2017-12-13T23:51:28","slug":"colonel-a-d-nargolkar-vs-union-of-india-ors-on-26-april-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/colonel-a-d-nargolkar-vs-union-of-india-ors-on-26-april-2011","title":{"rendered":"Colonel A.D.Nargolkar vs Union Of India & Ors. on 26 April, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
Colonel A.D.Nargolkar vs Union Of India & Ors. on 26 April, 2011<\/div>\n
Author: Pradeep Nandrajog<\/div>\n
$~1A(1)-1A(35) & 1A(37)\n*      IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n%                           Judgment Reserved on: 15th March, 2011\n                            Judgment Delivered on: 26th April, 2011\n\n+                    W.P.(C) 13360\/2009\n\n       COLONEL A.D.NARGOLKAR                  ..... Petitioner\n                Through: Mr.Vinay Kr. Garg, Advocate with\n                         Mr.Fazal Ahmad and Ms.Namrata\n                         Singh, Advocates.\n                versus\n\n       UNION OF INDIA AND ORS.             ..... Respondents\n                 Through: Mr.A.S.Chandhiok, ASG and\n                          Mr.Atul Nanda, Sr.Advocate with\n                          Mr.Ankur Chhibber and Mr. Anuj\n                          Aggarwal, Advocates for UOI with\n                          Major Rahul Soni\n\n                     W.P.(C) 13367\/2009\n\n       COLONEL A.D.NARGOLKAR                  ..... Petitioner\n                Through: Mr.Vinay Kr. Garg, Advocate with\n                         Mr.Fazal Ahmad and Ms.Namrata\n                         Singh, Advocates.\n\n                     versus\n\n       UNION OF INDIA AND ORS               ..... Respondents\n                 Through: Mr.A.S.Chandhiok, ASG and\n                          Mr.Atul Nanda, Sr.Advocate with\n                          Mr.Ankur Chhibber, Advocate for\n                          UOI with Major Rahul Soni.\n\n                     W.P.(C) 273\/2010\n\n       JC-23692P KISALAR NABAB SINGH          ..... Petitioner\n                 Through: Mr.D.S.Kauntae, Advocate.\n\n                     versus\n\n       UNION OF INDIA AND ORS.              ..... Respondents\n                 Through: Mr.Atul Nanda, Sr.Advocate with\nWP(C) 13360\/2009 & connected matters               Page 1 of 69\n                                    Mr.Ankur Chhibber, Advocate for\n                                   UOI with Major Rahul Soni.\n\n                     W.P.(C) 654\/2010\n\n       LT. COL. HARPREET SINGH                           ..... Petitioner\n                 Through: None.\n\n                     versus\n\n\n       UNION OF INDIA AND ORS.              ..... Respondents\n                 Through: Mr.Atul Nanda, Sr.Advocate with\n                          Mr.Ankur Chhibber and Mr. Anuj\n                          Aggarwal, Advocates for UOI with\n                          Major Rahul Soni.\n\n                     W.P.(C) 1918\/2010\n\n       OM PRAKASH                                        ..... Petitioner\n               Through:            None.\n\n                     versus\n\n\n       UNION OF INDIA AND ORS.              ..... Respondents\n                 Through: Mr.Gaurav M.Liberhan, Advocate,\n                          Mr.Atul Batra, Advocate and\n                          Ms.Swapnil Jain, Advocate for UOI.\n\n                     W.P.(C) 2667\/2010\n\n       COL. SANJAY KUMAR                                 ..... Petitioner\n                 Through: None.\n\n                     versus\n\n\n       UNION OF INDIA AND ORS.              ..... Respondents\n                 Through: Mr.Atul Nanda, Sr.Advocate with\n                          Mr.Ankur Chhibber, Advocate for\n                          UOI with Major Rahul Soni.\n\n\n\n\nWP(C) 13360\/2009 & connected matters                 Page 2 of 69\n                      W.P.(C) 3086\/2010\n\n       S.YADAV                                    ..... Petitioner\n                     Through:      Mr.V.S.Tomar, Advocate\n\n                     versus\n\n\n       UNION OF INDIA AND ORS.              ..... Respondents\n                 Through: Mr.Sachin Datta, Advocate with\n                          Mr.Abhimanyu Kumar, Advocate\n                          for UOI.\n\n\n                     W.P.(C) 3405\/2010\n\n       USHA ATRI                                   ..... Petitioner\n                     Through:      Mr.K.K.Rohatgi, Advocate\n\n                     versus\n\n\n       UNION OF INDIA AND ORS.           ..... Respondents\n                 Through: Ms.Raman Oberoi, Advocate for\n                          UOI.\n\n                     W.P.(C) 3439\/2010\n\n       NARVIR SINGH                                      ..... Petitioner\n                 Through:          Col.S.R.Kalkal, Advocate\n\n                     versus\n\n       UNION OF INDIA AND ORS.              ..... Respondents\n                 Through: Mr.Atul Nanda, Sr.Advocate with\n                          Mr.Ankur Chhibber, Advocate for\n                          UOI with Major Rahul Soni.\n\n                     W.P.(C) 3441\/2010\n\n       MAHA RAM                                          ..... Petitioner\n                     Through:      Col.S.R.Kalkal, Advocate\n\n                     versus\nWP(C) 13360\/2009 & connected matters                   Page 3 of 69\n        UNION OF INDIA AND ORS.              ..... Respondents\n                 Through: Mr.Atul Nanda, Sr.Advocate with\n                          Mr.Ankur Chhibber, Advocate for\n                          UOI with Major Rahul Soni.\n\n                     W.P.(C) 3578\/2010\n\n       V.S.SUKHDIAL, YSM                                  ..... Petitioner\n                Through:           Mr.Dil Jit Singh, Advocate.\n\n                     versus\n\n       UNION OF INDIA AND ORS.             ..... Respondents\n                 Through: Ms.Anjana Gosain, Advocate for\n                          UOI.\n\n                     W.P.(C) 3828\/2010\n\n       NARESH KUMAR                                      ..... Petitioner\n                Through:           Col.S.R.Kalkal, Advocate\n\n                     versus\n\n       UNION OF INDIA AND ORS.              ..... Respondents\n                 Through: Mr.Atul Nanda, Sr.Advocate with\n                          Mr.Ankur Chhibber, Advocate for\n                          UOI with Major Rahul Soni.\n\n\n                     W.P.(C) 3836\/2010\n\n       INDRA SINGH SOLANKI                    ..... Petitioner\n                Through: Mr.S.M.Dalal, Advocate\n\n                     versus\n\n       UNION OF INDIA AND ORS.              ..... Respondents\n                 Through: Mr.Atul Nanda, Sr.Advocate with\n                          Mr.Ankur Chhibber, Advocate for\n                          UOI with Major Rahul Soni.\n\n\n\n\nWP(C) 13360\/2009 & connected matters                   Page 4 of 69\n                      W.P.(C) 3841\/2010\n\n       RAM SWARUP                                       ..... Petitioner\n               Through:            Mr.S.M.Dalal, Advocate\n\n                     versus\n\n\n       UNION OF INDIA AND ORS.              ..... Respondents\n                 Through: Mr.Atul Nanda, Sr.Advocate with\n                          Mr.Ankur Chhibber, Advocate for\n                          UOI with Major Rahul Soni.\n\n\n                     W.P.(C) 4417\/2010\n\n       G.S. BENIWAL                                    ..... Petitioner\n                 Through:          Mr.Mathew D., Mr.Mohinder Singh\n                                   & Mr.D.S.Chaudhary, Advocates.\n                     versus\n\n       UNION OF INDIA AND ORS.              ..... Respondents\n                 Through: Mr.Atul Nanda, Sr.Advocate with\n                          Mr.Ankur Chhibber, Advocate for\n                          UOI with Major Rahul Soni.\n\n                     W.P.(C) 4524\/2010\n\n       KIRAN PAL SINGH                                    ..... Petitioner\n                     Through:           None.\n\n                     versus\n\n\n       UNION OF INDIA AND ORS.             ..... Respondents\n                      Through: Mr.Atul Nanda, Sr.Advocate\n                               with Mr.Ankur Chhibber,\n                               Advocate for UOI with Major\n                               Rahul Soni.\n\n                     W.P.(C) 4652\/2010\n\n       B.D. KHENTE                                     ..... Petitioner\n                 Through:          Mr.D.S.Kauntae, Advocate.\n\nWP(C) 13360\/2009 & connected matters                  Page 5 of 69\n                      versus\n\n       UNION OF INDIA AND ORS.             ..... Respondents\n                 Through: Ms.Barkha Babbar, Advocate for\n                          UOI with Major Rahul Soni.\n\n                     W.P.(C) 4669\/2010\n\n       EX. SIGMN GANGA RAMA SHARMA             ..... Petitioner\n                 Through: Mr.S.M.Dalal, Advocate\n\n                     versus\n\n\n       UNION OF INDIA AND ORS.               ..... Respondents\n                 Through: Ms.Jyoti Singh, Senior Advocate\n                          with Mr.Jayendra, Advocate for UOI.\n\n                     W.P.(C) 4699\/2010\n\n       RAMESHWAR PRASAD SHARMA                            ..... Petitioner\n              Through: None.\n\n                     versus\n\n\n       UNION OF INDIA AND ORS.             ..... Respondents\n                 Through: Mr.Ruchir Mishra & Mr.Mukesh\n                          Tiwari, Advocates for UOI.\n\n                     W.P.(C) 4887\/2010\n\n       SURJIT KAUR                                     ..... Petitioner\n                 Through:          Mr.D.S.Kauntae, Advocate.\n\n                     versus\n\n       UNION OF INDIA AND ORS.            ..... Respondents\n                 Through: Ms.Barkha Babbar, Advocate for\n                          UOI with Major Rahul Soni.\n\n                     W.P.(C) 4926\/2010\n\n       INDER SINGH                                      ..... Petitioner\n                 Through:          Mr.S.M.Dalal, Advocate\nWP(C) 13360\/2009 & connected matters                  Page 6 of 69\n                      versus\n\n\n       UNION OF INDIA AND ORS.              ..... Respondents\n                 Through: Mr.Atul Nanda, Sr.Advocate with\n                          Mr.Ankur Chhibber, Advocate for\n                          UOI with Major Rahul Soni.\n\n                     W.P.(C) 5090\/2010\n\n       HARVINDER SINGH KOHLI                      ..... Petitioner\n               Through: None.\n\n                     versus\n\n\n       UNION OF INDIA AND ORS.             ..... Respondents\n                 Through: Ms.Barkha Babbar, Advocate for\n                          UOI with Major Rahul Soni.\n\n                     W.P.(C) 5156\/2010\n\n       VIJAY BAHADUR SINGH                     ..... Petitioner\n                 Through: Mr.S.M.Dalal, Advocate\n\n                 versus\n       UNION OF INDIA AND ORS.              ..... Respondents\n                 Through: Mr.Ravinder Agarwal, CGSC with\n                          Major Rahul Soni.\n\n                     W.P.(C) 5189\/2010\n\n       PRABHU DAYAL SHARMA                  ..... Petitioner\n               Through: None.\n\n                     versus\n\n\n       UNION OF INDIA AND ORS.              ..... Respondents\n                 Through: Mr.Atul Nanda, Sr.Advocate with\n                          Mr.Ankur Chhibber, Advocate for\n                          UOI with Major Rahul Soni.\n\n\nWP(C) 13360\/2009 & connected matters          Page 7 of 69\n                      W.P.(C) 5206\/2010\n\n       RAI SINGH                                    ..... Petitioner\n                     Through:      None.\n\n                     versus\n\n\n       UNION OF INDIA AND ORS.             ..... Respondents\n                 Through: Mr.D.S.Mahendru, CGSC with\n                          Mr.M.P.Singh, Advocate with Major\n                          Rahul Soni.\n\n                     W.P.(C) 5764\/2010\n\n       LT. COL. RAJEEV BHATT                   ..... Petitioner\n                  Through: Mr.Fazal Ahmad with Mr.Namrata\n                           Singh, Advocates.\n                  versus\n\n       UNION OF INDIA AND ORS.              ..... Respondents\n                 Through: Mr.Atul Nanda, Sr.Advocate with\n                          Mr.Ankur Chhibber, Advocate for\n                          UOI with Major Rahul Soni.\n\n                     W.P.(C) 5794\/2010\n\n       HAV REIJI KUMAR                                     ..... Petitioner\n                  Through:         None.\n\n                     versus\n\n\n       UNION OF INDIA AND ORS.              ..... Respondents\n                 Through: Mr.Neeraj Chaudhari, CGSC\n                          with Mr.Mohit Auluck and Mr.Khalid\n                          Arshad,Advocates with Major Rahul\n                          Soni.\n\n                     W.P.(C) 6061\/2010\n\n       PSK CHOUDHARY                               ..... Petitioner\n               Through:            Mr.S.M.Dalal & Mr.P.D.P.Deo,\n                                   Advocates.\n\nWP(C) 13360\/2009 & connected matters                   Page 8 of 69\n                      versus\n\n\n       UNION OF INDIA AND ORS.              ..... Respondents\n                 Through: Mr.Atul Nanda, Sr.Advocate with\n                          Mr.Ankur Chhibber, Advocate for\n                          UOI with Major Rahul Soni.\n\n\n                     W.P.(C) 6066\/2010\n\n       BHAGWAN SINGH                                   ..... Petitioner\n               Through:            Mr.M.G.Kapoor, Advocate\n\n                     versus\n\n\n       UNION OF INDIA AND ANR.               ..... Respondents\n                 Through: Ms.Jyoti Singh, Sr.Advocate with\n                          Mr.M.P.Singh, Advocate with Major\n                          Rahul Soni.\n\n                     W.P.(C) 6183\/2010\n\n       R.P. SINGH                                     ..... Petitioner\n                     Through:      Mr.Dil Jit Singh, Advocate.\n\n                     versus\n\n\n       UNION OF INDIA AND ORS.             ..... Respondents\n                 Through: Mr.B.V.Niren, CGSC with\n                          Mr.Abhishek Goyal, Advocate for\n                          UOI.\n\n                     W.P.(C) 7018\/2010\n\n       GUNNER STOREHAND BANARASI LAL         ..... Petitioner\n               Through: Mr.Dipak Bhattacharya and\n                        Mr.Mithilesh Kumar, Advocate.\n\n                     versus\n\n       UNION OF INDIA AND ANR.               ..... Respondents\n                 Through: Ms.Jyoti Singh, Sr.Advocate with\nWP(C) 13360\/2009 & connected matters                     Page 9 of 69\n                                    Mr.M.P.Singh, Advocate with Major\n                                   Rahul Soni.\n\n                     W.P.(C) 7039\/2010\n\n       MILKHI RAM                                       ..... Petitioner\n                Through:           Mr.Dipak Bhattacharya and\n                                   Mr.Mithilesh Kumar, Advocate.\n\n                     versus\n\n       UNION OF INDIA AND ANR.               ..... Respondents\n                 Through: Ms.Jyoti Singh, Sr.Advocate with\n                          Mr.M.P.Singh, Advocate with Major\n                          Rahul Soni.\n\n                     W.P.(C) 7040\/2010\n\n       SEWA RAM NAGIAL                                  ..... Petitioner\n               Through:            Mr.Dipak Bhattacharya and\n                                   Mr.Mithilesh Kumar, Advocate.\n\n                     versus\n\n       UNION OF INDIA AND ANR.               ..... Respondents\n                 Through: Ms.Jyoti Singh, Sr.Advocate with\n                          Mr.M.P.Singh, Advocate with Major\n                          Rahul Soni.\n\n                     W.P.(C) 7041\/2010\n\n       SAT PAL                                          ..... Petitioner\n                     Through:      Mr.Dipak Bhattacharya and\n                                   Mr.Mithilesh Kumar, Advocate.\n\n                     versus\n\n       UNION OF INDIA AND ANR.               ..... Respondents\n                 Through: Ms.Jyoti Singh, Sr.Advocate with\n                          Mr.M.P.Singh, Advocate with Major\n                          Rahul Soni.\n\n                     W.P.(C) 7042\/2010\n\n       HARI SINGH                                         ..... Petitioner\nWP(C) 13360\/2009 & connected matters                  Page 10 of 69\n                      Through:      Mr.Dipak Bhattacharya and\n                                   Mr.Mithilesh Kumar, Advocate.\n\n                     versus\n\n        UNION OF INDIA AND ORS.               ..... Respondents\n                  Through: Ms.Jyoti Singh, Sr.Advocate with\n                           Mr.M.P.Singh, Advocate with Major\n                           Rahul Soni.\n\n                     W.P.(C) 8298\/2010\n\n        BHAGWAN SINGH                                 ..... Petitioner\n                Through:           Ms.Kusum Sharma, Advocate.\n\n                     versus\n\n        UNION OF INDIA AND ANR.               ..... Respondents\n                  Through: Ms.Jyoti Singh, Sr.Advocate with\n                           Mr.M.P.Singh, Advocate and\n                           Major Rahul Soni.\n\n        CORAM:\n        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG\n        HON'BLE MR. JUSTICE SURESH KAIT\n\n     1. Whether the Reporters of local papers may be allowed\n        to see the judgment?\n     2. To be referred to Reporter or not?\n     3. Whether the judgment should be reported in the Digest?\nPRADEEP NANDRAJOG, J.\n<\/pre>\n
1.      For every real or imaginary problem, a law is enacted
\nwith the belief, that by this step the problem will be solved.
\nBut we find, for reasons which are fairly unexplainable, that
\nproblematic issues relating to the problem arise. The problem
\nof delay in adjudication of disputes between members of an
\nArmed Force and the Force in Civil Courts led to the
\nestablishment of the Armed Forces Tribunal with the pious
\nhope that an exclusive Tribunal to decide disputes relating to
\nWP(C) 13360\/2009 & connected matters                 Page 11 of 69<\/span>
\n Armed Forces would facilitate a speedy adjudication of
\ndisputes, but the establishment of the Tribunal has raised
\njurisdictional issues pertaining to the power of a High Court
\nunder Article 226 and Article 227 of the Constitution of India.\n<\/p>\n
2.     Much has been said about the delay in obtaining justice
\nin Courts and one probable reason for the delay, apart from
\nmany others, is the multiple tiered adjudicatory forums
\navailable to the litigating parties.   A simple revenue matter,
\npertaining to an entry in the record of rights, commences with
\na claim before the tehsildar whose decision is amenable to a
\nchallenge by way of an appeal either before the Revenue
\nAssistant or an Additional Collector and a further forum of a
\nRevision before the Financial Commissioner.      Exhausting the
\nchannel of forums available before the Revenue Authorities, an
\naggrieved party can approach the High Court under its Writ or
\nSupervisory Jurisdiction under Article 226 or Article 227 of the
\nConstitution of India, which writ is heard by a learned Single
\nJudge of the High Court. Further forum of a Writ Appeal or a
\nLetters Patent Appeal is available before a Division Bench and
\nat the top of the pyramid would be a Petition for Special Leave
\nto Appeal before the Supreme Court.         The eviction of an
\nunauthorized occupant from a public premises commences
\nwith a proceedings before the Estate Officer whose decision
\ncan be challenged by way of an Appeal before the District
\nJudge and further remedies, one before a Single Judge and one
\nbefore a Division Bench thereafter are available in the High
\nCourt before the destination is reached by way of a Petition for
\nSpecial Leave to Appeal before the Supreme Court. An issue
\nof levy and assessment of house tax commences with an
\nadjudication before the Assessor and Collector against whose<\/p>\n
WP(C) 13360\/2009 & connected matters            Page 12 of 69<\/span>
\n decision an Appeal would lie to either the District Judge or a
\nCommittee of Assessors and thereafter the water flows before
\na Single Judge and thereafter a Division Bench of the High
\nCourt before terminating by way of a Petition for Special Leave
\nto Appeal before the Supreme Court.                      A licensing issue
\ncommences with a decision of the Licensing Inspector against
\nwhich a departmental remedy by way of a representation to
\nthe Commissioner would lie before the water flows through a
\nSingle Judge and thereafter a Division Bench of the High Court
\nbefore terminating by way of a Petition for Special Leave to
\nAppeal before the Supreme Court.                    A simple recovery suit
\nbefore a Judge, Junior Division, would result in an Appeal
\nbefore a Judge Senior Division i.e. a Regular First Appeal with
\nfurther remedy before the High Court by way of a Regular
\nSecond Appeal and the ultimate destination would be a
\nPetition for Special Leave to Appeal before the Supreme Court.
\nAn ejectment petition before a Rent Controller leads to a First
\nAppeal before the Rent Control Tribunal and if the remedy of
\nSecond Appeal against order is not provided by the statute a
\nchallenge would lie under the supervisory jurisdiction of the
\nHigh Court under Article 227 of the Constitution of India and
\nmercifully no challenge would lie before a Division Bench and
\nthe journey would end a step earlier before the Supreme Court
\nby way of a Special Leave to Appeal.\n<\/p>\n
3.     The     multi     tiered    adjudicatory        forums,    having   a
\npyramidical structure, are bound to result in congestion as we
\nmove upwards and the movement of the traffic (litigation) is
\nbound to be slow; and if not result in making an exit from the
\nreality of life, the slow pace certainly diminishes the value of a
\nclaim.       Some       believe        that   the    existing    adjudicatory<\/p>\n
WP(C) 13360\/2009 & connected matters                      Page 13 of 69<\/span>
\n mechanism, which functions in a multi-tiered pyramidically
\nstructured structure, has virtually reduced the whole system
\ninto a reductio ad absurdum.\n<\/p>\n
4.     In spite of all these criticisms, it is also true to say that
\nthe system of administration of justice has withstood the test
\nof time notwithstanding its inability to readjust itself to the
\nchanging time.\n<\/p>\n
5.     The concept of \u2017Rule of Law’ is the outcome of the legal
\nand political experience of people. The Rule of Law embodies
\nthe hard fought gains in the Common Law Traditions of
\nEngland. It was the culmination of a long and bitter struggle of
\nthe common lawyers against Royal Tyranny. As far back as in
\nthe 13th Century, Bracton maintained that even Kings were
\nsubject to law. He exhorted: \u2017The King shall not be subject to
\nman, but to God and the Law since law makes the King’.
\nJames-I, who believed in the divine right of Kings, dictate that
\nthe King’s will was supreme.           He told the Judges not to
\ninterfere with his prerogative Courts, such as the Star
\nChamber.        Chief Justice, Sir Edward Coke, repudiated the
\nKing’s claim and declared that Judges would follow the
\nCommon Law and the King was under the Law. Indeed, the
\nJudges won the struggle against the Royal claim to rule by
\nprerogative.\n<\/p>\n
6.     The Parliament, with the aid of common lawyers, won the
\nglorious bloodless revolution against the Kings.         But, in the
\nplace of the King’s supremacy, the supremacy of the
\nParliament came to be established.         The supremacy of law,
\nwhich Bracton and Coke had fought for and won, came to
\nmean the supremacy of Parliament and its penchant for
\n\u2017elective dictatorship’. Men realized that it would be a grave
\nWP(C) 13360\/2009 & connected matters              Page 14 of 69<\/span>
\n mistake to equate legitimacy with the sovereign will or
\nmajority rule alone to the exclusion of other constitutional
\nvalues.\n<\/p>\n
7.     As Parliament legislated to control the rights of the
\ncitizens, the concern of the Rule of Law was to limit and
\ndiscipline this sovereign power to legislate.\n<\/p>\n
8.     Three essential components of the concept of Rule of
\nLaw emerged. The first was that the law is supreme over the
\nacts of both, the government and the citizens.               The second
\nwas an independent judiciary to adjudicate claims between the
\ngovernment and the citizens and the third was the exercise of
\npublic power must find its ultimate source in some legal rule
\nand the relationship between the State and the citizen must be
\nregulated only by law.\n<\/p>\n
9.     Highlighting the second component of the concept of the
\nRule of Law, suffice would it be to state that laws, which ought
\nto be equal, general and known, need to be administered by
\nindependent Judges and the three organs of the State i.e. the
\nLegislature, the Executive and the Judiciary shall be separate.\n<\/p>\n
10.    The Indian Constitution rests on federalism, democracy,
\nconstitutionalism, respect for minority rights, fundamental
\nrights of the individual and the Rule of Law.            These defining
\nprinciples function in symbiosis and no single principle can be
\ndefined in isolation from the others, nor does any one principle
\ntrump or exclude the operation of the other.\n<\/p>\n
11.    The    problem       of   judicial   delays   resulting     from   a
\npyramidical structure of adjudicatory forums has its roots in
\nthe concept of the Rule of Law having a feature of independent
\nJudges, free from the control of the Executive, to decide
\ndisputes between the State and its citizens.            The problem is<\/p>\n
WP(C) 13360\/2009 & connected matters                   Page 15 of 69<\/span>
\n the result of two conflicting values which society cherishes and
\nhas nurtured over the years. The first conflicting value is to
\nsecure, in the shortest possible time, the right conferred by
\nlaw upon the citizen of the State and the second conflicting
\nvalue is a say, in the adjudicatory process, by an independent
\nJudge.\n<\/p>\n
12.    Whereas the State beckons us, in the instant writ
\npetitions, to sacrifice the value of an independent Judge having
\na say in the adjudicatory process to resolve a conflict between
\na member of an Armed Force, subject to the Army Act, the
\nNavy Act and the Air Force Act, and the Force and leave it to
\nthe Tribunal constituted under the Armed Forces Tribunal Act
\n2007 to do the needful; the result being a speedy adjudication
\nof claims, stated to be necessary to maintain discipline in
\nArmed Forces. The protagonists i.e. the writ petitioners state
\nthat it would be too heavy a price to pay i.e. speedy justice, if
\nthey have to sacrifice an independent Judge having a say in
\nthe adjudicatory process.\n<\/p>\n
13.    The cardinal question which arises for consideration in
\nthe above caption writ petitions, upon the answer whereof
\nwould depend whether the issues of merit raised in the writ
\npetitions can be adjudicated on, is whether a writ of
\nerror\/certiorari or any other writ of the like nature would lie
\nunder Article 226 of the Constitution of India against a decision
\nof the Tribunal constituted under the Armed Forces Tribunal
\nAct 2007 and additionally whether a High Court can exercise
\nthe power of superintendence over said Tribunal, a power of
\nthe High Court under Article 227 of the Constitution of India.\n<\/p>\n
14.    The legislative competence in both, i.e. the Parliament
\nand the State Legislatures, to effect changes in the Original<\/p>\n
WP(C) 13360\/2009 & connected matters           Page 16 of 69<\/span>
\n Jurisdiction of the Supreme Court and the High Court can be
\ntraced not only to Article 323-A and 323-B of the Constitution
\nof India inserted in the Constitution by the Constitution 42nd
\nAmendment Act 1976, but even under entries 77, 78, 79 and
\n95 of List-I, pertaining to Parliament; and entry 65 of List-II,
\npertaining to the State Legislature; and entry 46 of List-III
\navailable to both. Thus, none has argued with respect to the
\nlack of legislative competence in the Parliament to enact \u2017The
\nArmed Forces Tribunal Act 2007′ and we note that no section
\nthereof is under challenge with respect to the constitutionality
\nthereof. Pertaining to a Tribunal pertaining to an Armed Force,
\nit may be highlighted that neither Article 323A nor Article 323B
\nspecifically refers to an Armed Force Tribunal, but entry 2
\nunder List-I read with entry 97 of said list would be the safe
\nsource of the legislative power to create an Armed Force
\nTribunal.\n<\/p>\n
15.    Not that discipline is irrelevant in a civil society and that
\nits relevance is only to an Armed Force, but surely everybody
\nwould agree that whereas some form of indiscipline may be
\naccepted in the din of democracy, there is just no scope to
\nbrook even the slightest indiscipline in an Armed Force; for the
\nreason it is recognized that in times of peace an Armed Force
\nconstitutes a grave threat to democracy.             In the Indian
\ncontext, by virtue of Article 33 of the Constitution of India,
\nrights conferred by Part-III of the Constitution of India i.e. the
\nprecious fundamental rights available to persons and citizens
\nof India can be curtailed in their application to the members of
\nthe Armed Forces and laws were enacted in India which gave
\nthe right to the Armed Forces to subject its members to
\npunishment extending up to even the sentence of death at<\/p>\n
WP(C) 13360\/2009 & connected matters              Page 17 of 69<\/span>
\n trials presided over by fellow members of the Armed Force,
\nway back in the year 1982, in the decision reported as AIR
\n1982 SC 1414 Lt.Col.Prithi Pal Singh Bedi vs. UOI & Ors.,<\/a> noting
\nthat military trials are subject to varying degrees of \u2017command
\ninfluence’ and there was absence of even one appeal with an
\nAppellate Forum (having power to review evidence, legal
\nformulations, conclusions and adequacy or otherwise of
\npunishment), and opining the same to be not in sync with
\ndemocratic principles; further noting the changes adopted in
\nforeign jurisdictions, the Supreme Court expressed a pious
\nhope that the legislature should earnestly consider creating an
\nAppellate Forum, which should be free from the command
\ninfluence, for members of Armed Forces; lest these brave sons
\nand daughters of India feel being orphaned in a democratic
\nsociety. The Supreme Court expressed itself, in para 45 of the
\ndecision, by highlighting that whereas a hierarchy of Courts
\nwith appellate powers has been found to be counter-
\nproductive, and suggested at least a single judicial review
\nforum which must truly be a judicial review forum for the
\nmembers of the Armed Forces to question the verdicts against
\nthem at a Court Martial. This was the clarion call which went
\nunheeded and unnoticed till, in the year 1999, the Law
\nCommission, in its 169th Report, titled as \u2017Amendment of Army,
\nNavy and Air Force Acts – April 1999′ opining that the
\nrequirement of justice and discipline for members of the
\nArmed Forces had to march hand in hand and recommended
\nsetting up of an Adjudicatory Forum, to act as an Appellate
\nForum, against decisions of Military Courts and Military
\nTribunals.       In para 1.1 and 1.2 of its report, the Law
\nCommission highlighted that the existing mechanism of High<\/p>\n
WP(C) 13360\/2009 & connected matters           Page 18 of 69<\/span>
\n Courts     entertaining      petitions   under   Article   226        of   the
\nConstitution of India against verdicts by Court Martials was
\nunhealthy inasmuch as each High Court was adopting its own
\napproach in the matter and thus there was a desirability of
\nhaving a single Appellate Tribunal. In para 5.1.1 of its report,
\nthe Tribunal recommended that the Appellate Tribunal should
\nnot be a totally Civilian Appellate Tribunal as has been
\nprovided in the United Kingdom, opining that in the Indian
\ncontext this may not be conducive to the discipline of the
\nArmed Force.          The Law Commission suggested a hybrid
\nTribunal, headed by a Civilian Judge whose other members
\ncould be drawn from retired members of the Armed Forces. In
\npara 5.1.4 of the Report, the Commission recommended a
\ndirect Statutory Appeal to the Supreme Court against the
\ndecisions of the Tribunal and expressed a hope that if a
\nlegislation was enacted in harmony with its recommendations
\nthe Commission would expect that no High Court would
\nentertain a writ petition under Article 226 of the Constitution of
\nIndia against the orders of the Appellate Tribunal. In para 6.1
\nof its Report the Law Commission noted that each year
\nthousands of writ petitions were filed by members of Armed
\nForces in several High Courts in India concerning their service
\nmatters and due to docket explosions in Courts these matters
\nremain pending for years together resulting in a sense of
\ndissatisfaction creeping into the members of the Armed
\nForces; it was opined by the Law Commission that this
\ncreeping dissatisfaction was against the interest of discipline in
\nan Armed Force.          Thus, the Law Commission recommended
\nthat the Statutory Appellate Tribunal to be created should be
\nall embracive i.e. should act as the Appellate Forum for merit<\/p>\n
WP(C) 13360\/2009 & connected matters                  Page 19 of 69<\/span>
\n review of Court Martials as also as the Forum where service
\ndisputes such as seniority, promotions and other conditions of
\nservice could be adjudicated upon. In para 6.2.4 of the report,
\nthe Law Commission opined that if an adequate remedy of
\nappeal, on a question of law against the decision of the
\nproposed Tribunal would be made available before the
\nSupreme Court, in view of an adequate remedy of appeal, the
\nHigh Courts would not exercise jurisdiction under Article 226 of
\nthe Constitution of India.\n<\/p>\n
16.    The setting up of Armed Forces Tribunal was then taken
\nup by the 13th Lok Sabha Standing Committee on Defence,
\nresulting in the committee recommending a Special Court of
\nAppeal, headed by a retired Judge of the Supreme Court,
\nindependent of service headquarters, to be constituted for the
\nredressal of grievances of service personnel, but restricted the
\nsame against decisions of Military Courts. The Parliament took
\nup the matter further and we saw the birth of \u2017The Armed
\nForces Tribunal Act 2007′ when having been passed by both
\nthe Houses of Parliament, The Armed Forces Tribunal Bill
\nreceived the assent of the President of India on the 20 th day of
\nDecember 2007 and came on the Statute Book as THE ARMED
\nFORCES TRIBUNAL ACT 2007 (ACT NO.55 OF 2007).\n<\/p>\n
17.    It was but necessary that in the Statement of Objects and
\nReasons, the necessity of the legislation was traced to the
\nobservations of the Supreme Court in Prithi Pal Singh Bedi’s
\ncase (supra).\n<\/p>\n
18.    As per the Preamble, the Act aims to provide, for the
\nadjudication or trial, by Armed Forces Tribunal, of disputes and
\ncomplaints       with     respect      to   commission,   appointment,
\nenrollment and conditions of service in respect of persons<\/p>\n
WP(C) 13360\/2009 & connected matters                  Page 20 of 69<\/span>
\n subject to the Army, Navy and Air Force Act and additionally to
\nprovide for appeals arising out of orders, findings or sentences
\nof Court Martial held under the said three acts. In other words,
\nthe Tribunal exercises an Appellate Jurisdiction with respect to
\norders, findings or sentences of Court Martials and exercises
\nOriginal Jurisdiction with respect to service disputes.\n<\/p>\n
19.    As per Section 5 of the Act, the Tribunal is to consist of a
\nChairperson and such number of Judicial and Administrative
\nMembers as the Central Government may decide with the
\npower and jurisdiction of the Tribunal to be exercised by
\nBenches thereof. Vide sub-section 2 of Section 5, a Bench has
\nto consist of 1 Judicial Member and 1 Administrative Member.
\nAs per Section 6, the qualification for being appointed as the
\nChairperson of the Tribunal is a person being a retired Judge of
\nthe Supreme Court or a retired Chief Justice of a High Court.
\nThe qualification for a Judicial Member is a person who is or
\nhas been a Judge of a High Court.            To be qualified for
\nappointment as an Administrative Member, a person must
\nhave held the rank of Major General or above for at least 3
\nyears in the Army or equivalent rank in the Navy or the Air
\nForce or is a Judge Advocate General for at least 1 year.
\nAppointment of Chairperson and Members, as per Section 7 of
\nthe Act, is by the President of India; with consultation with the
\nChief Justice of India. As per sub-section 2 of Section 9 of the
\nAct, the President has the power to remove the Chairperson or
\na Member upon ground of proof of misbehaviour or incapacity
\nafter an inquiry is made by a sitting Judge of the Supreme
\nCourt. The staff of the Tribunal is determined by the Central
\nGovernment as per Section 13 of the Act.\n<\/p>\n
20.    Vide Section 14 of the Act, the Tribunal is vested with the<\/p>\n
WP(C) 13360\/2009 & connected matters             Page 21 of 69<\/span>
\n jurisdiction relating to service matters pertaining to Members
\nof the Armed Forces and vide Section 15 of the Act, the
\nTribunal is empowered to entertain appeals against Court
\nMartials. Section 14 and 15 need to be noted and hence we
\nreproduce the same as under:-\n<\/p>\n
       \u201514. Jurisdiction, powers and authority in service
\n       matters – (1) Save as otherwise expressly provided
\n       in this Act, the Tribunal shall exercise, on and from
\n       the appointed day, all the jurisdiction, powers and
\n       authority, exercisable immediately before that day
\n       by all courts (except the Supreme Court or a High
\n       Court exercising jurisdiction under articles 226 and
\n       227 of the Constitution) in relation to all service
\n       matters.\n<\/p><\/blockquote>\n
       (2) Subject to the other provisions of this Act, a
\n       person aggrieved by an order pertaining to any
\n       service matter may make an application to the
\n       Tribunal in such form and accompanied by such
\n       documents or other evidence and on payment of
\n       such fee as may be prescribed.\n<\/p><\/blockquote>\n
       (3) On receipt of an application relating to service
\n       matters, the Tribunal shall, if satisfied after due
\n       inquiry, as it may deem necessary, that it is fit for
\n       adjudication by it, admit such application; but
\n       where the Tribunal is not so satisfied, it may
\n       dismiss the application after recording its reasons in
\n       writing.\n<\/p><\/blockquote>\n
       (4) For the purpose of adjudicating an application,
\n       the Tribunal shall have the same powers as are
\n       vested in a Civil Court under the Code of Civil
\n       Procedure, 1908, (5 of 1908) while trying a suit in
\n       respect of the following matters, namely:-\n<\/p><\/blockquote>\n
       (a) summoning and enforcing the attendance of any
\n       person and examining him on oath;\n<\/p><\/blockquote>\n
       (b) requiring the discovery and production of
\n       documents;\n<\/p><\/blockquote>\n
WP(C) 13360\/2009 & connected matters             Page 22 of 69<\/span><\/p>\n
        (c) receiving evidence on affidavits;\n<\/p><\/blockquote>\n
       (d) subject to the provisions of sections 123 and
\n       124 of the Indian Evidence Act, 1872, (1 of 1872).
\n       requisitioning any public record or document or
\n       copy of such record or document from any office;\n<\/p><\/blockquote>\n
       (e) issuing commissions for the examination of
\n       witnesses or documents;\n<\/p><\/blockquote>\n
       (f) reviewing its decisions;\n<\/p><\/blockquote>\n
       (g) dismissing an application for default or deciding
\n       it ex parte;\n<\/p><\/blockquote>\n
       (h) setting aside any order of dismissal of any
\n       application for default or any order passed by it ex
\n       parte; and<\/p>\n<\/blockquote>\n
       (i) any other matter which may be prescribed by
\n       the Central Government.\n<\/p><\/blockquote>\n
       (5) The Tribunal shall decide both questions of law
\n       and facts that may be raised before it.\n<\/p><\/blockquote>\n
       15. Jurisdiction, powers and authority in matters of
\n       appeal against court-martial.- (1) Save as otherwise
\n       expressly provided in this Act, the Tribunal shall
\n       exercise, on and from the appointed day, all the
\n       jurisdiction, powers and authority exercisable under
\n       this Act in relation to appeal against any order,
\n       decision, finding or sentence passed by a court-
\n       martial or any matter connected therewith or
\n       incidental thereto.\n<\/p><\/blockquote>\n
       (2) Any person aggrieved by an order, decision,
\n       finding or sentence passed by a court-martial may
\n       prefer an appeal in such form, manner and within
\n       such time as may be prescribed.\n<\/p><\/blockquote>\n
       (3) The Tribunal shall have power to grant bail to
\n       any person accused of an offence and in military
\n       custody, with or without any conditions which it
\n       considers necessary:\n<\/p><\/blockquote>\n
WP(C) 13360\/2009 & connected matters            Page 23 of 69<\/span><\/p>\n
        Provided that no accused person shall be so
\n       released if there appears reasonable ground for
\n       believing that he has been guilty of an offence
\n       punishable with death or imprisonment for life.\n<\/p><\/blockquote>\n
       (4) The Tribunal shall allow an appeal against
\n       conviction by a court-martial where-\n<\/p><\/blockquote>\n
       (a)    the finding of the court-martial is legally not
\n              sustainable due to any reason whatsoever; or<\/p>\n<\/blockquote>\n
       (b)    the finding involves wrong decision on a
\n              question of law; or<\/p>\n<\/blockquote>\n
       (c)    there was a material irregularity in the course
\n              of the trial resulting in miscarriage of justice,<\/p>\n
       but, in any other case, may dismiss the appeal
\n       where the Tribunal considers that no miscarriage of
\n       justice is likely to be caused or has actually resulted
\n       to the appellant:\n<\/p><\/blockquote>\n
       Provided that no order dismissing the appeal by the
\n       Tribunal shall be passed unless such order is made
\n       after recording reasons therefore in writing.\n<\/p><\/blockquote>\n
       (5) The Tribunal may allow an appeal against
\n       conviction, and pass appropriate order thereon.\n<\/p><\/blockquote>\n
       (6) Notwithstanding anything contained in the
\n       foregoing provisions of this section, the Tribunal
\n       shall have the power to–\n<\/p><\/blockquote>\n
       (a) substitute for the findings of the court-martial, a
\n       finding of guilty for any other offence for which the
\n       offender could have been lawfully found guilty by
\n       the court-martial and pass a sentence afresh for the
\n       offence specified or involved in such findings under
\n       the provisions of the Army Act, 1950 (46 of 1950) or
\n       the Navy Act, 1957 (62 of 1957) or the Air Force
\n       Act, 1950, (45 of 1950), as the case may be; or<\/p>\n<\/blockquote>\n
       (b) if sentence is found to be excessive, illegal or
\n       unjust, the Tribunal may–\n<\/p><\/blockquote>\n
WP(C) 13360\/2009 & connected matters               Page 24 of 69<\/span><\/p>\n
        (i) remit the whole or any part of the sentence, with
\n       or without conditions;\n<\/p><\/blockquote>\n
       (ii) mitigate the punishment awarded;\n<\/p><\/blockquote>\n
       (iii) commute such punishment to any lesser
\n       punishment or punishments mentioned in the Army
\n       Act, 1950, (46 of 1950), the Navy Act, 1957 (62 of
\n       1957) and the Air Force Act, 1950 (45 of 1950), as
\n       the case may be;\n<\/p><\/blockquote>\n
       (c) enhance the sentence awarded by a court-
\n       martial:\n<\/p><\/blockquote>\n
       Provided that no such sentence shall be enhanced
\n       unless the appellant has been given an opportunity
\n       of being heard.\n<\/p><\/blockquote>\n
       (d) release the appellant, if sentenced to
\n       imprisonment, on parole with or without conditions;\n<\/p><\/blockquote>\n
       (e) suspend a sentence of imprisonment;\n<\/p><\/blockquote>\n
       (f) pass any          other     order   as   it   may     think\n       appropriate.\u2016\n\n<\/pre>\n
       (7) Notwithstanding any other provisions in this Act, for
\n       the purposes of this section, the Tribunal shall be
\n       deemed to be a criminal court for the purposes of
\n       sections 175, 178, 179, 180, 193, 195, 196 or 228 of the
\n       Indian Penal Code (45 of 1860) and Chapter XXVI of the
\n       Code of Criminal Procedure, 1973. (2 of 1974)\n<\/p><\/blockquote>\n
21.    Vide Section 19 of the Act, the Tribunal is clothed with
\nthe power to punish for contempt but only if the contempt
\narises out of using insulting or threatening language or by
\ncausing any interruption or disturbance in the proceedings of
\nthe Tribunal. Relevant would it be to note that the sui generis
\npower of contempt vested in superior Courts i.e. the High
\nCourt and the Supreme Court to enforce their orders is not
\nWP(C) 13360\/2009 & connected matters                     Page 25 of 69<\/span>
\n vested in the Armed Forces Tribunal.\n<\/p>\n
22.    Vide Section 23 of the Act, the Tribunal is not bound by
\nthe procedure prescribed by the Code of Civil Procedure 1908
\nand is free to be guided by its own procedures.        Chapter-V,
\nhaving 2 sections i.e. Section 30 and Section 31, deals with
\nAppeals to the Supreme Court and being relevant for our
\ndiscussion are noted hereunder:-\n<\/p>\n
       \u201530. Appeal to Supreme Court .- (1) Subject to the
\n       provisions of section 31, an appeal shall lie to the
\n       Supreme Court against the final decision or order of
\n       the Tribunal (other than an order passed under
\n       section 19):\n<\/p><\/blockquote>\n
       Provided that such appeal is preferred within a
\n       period of ninety days of the said decision or order:\n<\/p><\/blockquote>\n
       Provided further that there shall be no appeal
\n       against an interlocutory order of the Tribunal.\n<\/p><\/blockquote>\n
       (2) An appeal shall lie to the Supreme Court as of
\n       right from any order or decision of the Tribunal in
\n       the exercise of its jurisdiction to punish for
\n       contempt:\n<\/p><\/blockquote>\n
       Provided that an appeal under this sub-section shall
\n       be filed in the Supreme Court within sixty days from
\n       the date of the order appealed against.\n<\/p><\/blockquote>\n
       (3) Pending any appeal under sub-section (2), the
\n       Supreme Court may order that–\n<\/p><\/blockquote>\n
       (a) the execution of the punishment or the order
\n       appealed against be suspended; or<\/p>\n<\/blockquote>\n
       (b) if the appellant is in confinement, he be
\n       released on bail:\n<\/p><\/blockquote>\n
       Provided that where an appellant satisfies the
\n       Tribunal that he intends to prefer an appeal, the
\n       Tribunal may also exercise any of the powers<\/p>\n
WP(C) 13360\/2009 & connected matters           Page 26 of 69<\/span>
\n        conferred under clause (a) or clause (b), as the case
\n       may be.\n<\/p><\/blockquote>\n
       31. Leave to appeal.- (1) An appeal to the Supreme
\n       Court shall lie with the leave of the Tribunal; and
\n       such leave shall not be granted unless it is certified
\n       by the Tribunal that a point of law of general public
\n       importance is involved in the decision, or it appears
\n       to the Supreme Court that the point is one which
\n       ought to be considered by that Court.\n<\/p><\/blockquote>\n
       (2) An application to the Tribunal for leave to
\n       appeal to the Supreme Court shall be made within a
\n       period of thirty days beginning with the date of the
\n       decision of the Tribunal and an application to the
\n       Supreme Court for leave shall be made within a
\n       period of thirty days beginning with the date on
\n       which the application for leave is refused by the
\n       Tribunal.\n<\/p><\/blockquote>\n
       (3) An appeal shall be treated as pending until any
\n       application for leave to appeal is disposed of and if
\n       leave to appeal is granted, until the appeal is
\n       disposed of; and an application for leave to appeal
\n       shall be treated as disposed of at the expiration of
\n       the time within which it might have been made, but
\n       it is not made within that time.\u2016\n<\/p><\/blockquote>\n
23.    Section 33 of the Act provides for exclusion of jurisdiction
\nof civil courts and reads as under:-\n<\/p>\n
       \u201533. Exclusion of jurisdiction of civil courts.- On and
\n       from the date from which any jurisdiction, powers
\n       and authority becomes exercisable by the Tribunal
\n       in relation-to service matters under this Act, no Civil
\n       Court shall have, or be entitled to exercise, such
\n       jurisdiction, power or authority in relation to those
\n       service matters.\u2016\n<\/p><\/blockquote>\n
24.    A perusal of the statutory provisions of the Armed Forces
\nTribunal Act 2007 would reveal that relating to the jurisdiction
\nof the Tribunal, vide Section 14, an original jurisdiction is
\ncreated with respect to service matters between the members<\/p>\n
WP(C) 13360\/2009 & connected matters              Page 27 of 69<\/span>
\n of an Armed Force and the Force and vide Section 15 the
\nTribunal has been vested with an appellate jurisdiction over
\ndecisions, findings and sentence passed by a Court Martial. It
\nis also important to note that Sub-Section 1 of Section 14
\npreserves the jurisdiction of the Supreme Court and of the
\nHigh Court and needless to state the jurisdiction of High Court
\npreserved is under Article 226 and Article 227 of the
\nConstitution of India.         Vide Section 19, a limited power to
\npunish for contempt is vested in the Tribunal and one find that
\nthe same is limited to using insulting or threatening language
\nor by causing interruption or disturbance in the proceedings of
\nthe Tribunal.       The contempt jurisdiction does not relate to
\nwillful disobedience to a judgment, direction or order passed
\nby the Tribunal.\n<\/p>\n
25.    The right to file an appeal before the Supreme Court
\ncreated vide Section 30 of the Act is subject to Section 31 of
\nthe Act and this means that the right to appeal to the Supreme
\nCourt is not a matter of right but is a matter of discretion to be
\nexercised by the Tribunal upon an application to be filed
\nseeking leave of the Tribunal to file an appeal to the Supreme
\nCourt. Further, the discretion of the Tribunal to grant leave is
\nnot with respect to every point of law which may have arisen
\nfor consideration before the Tribunal, but is limited to a point
\nof law of general public importance. Of course, under Section
\n31 a power has been vested in the Supreme Court to grant
\nleave to appeal if the Supreme Court would be satisfied that
\nthe point raised before it is one which ought to be considered
\nby the Supreme Court.             In other words the right to appeal
\nconferred by the Act is a very narrow right and is not akin to a
\nstatutory right of appeal, as a matter of right, understood in<\/p>\n
WP(C) 13360\/2009 & connected matters                Page 28 of 69<\/span>
\n law.\n<\/p>\n
26.    It needs to be highlighted that the power to appoint the
\nChairperson and members of the Tribunal is vested in the
\nexecutive.\n<\/p>\n
27.    It is time now to note the contentions urged by rival
\nparties.\n<\/p>\n
28.    Sh.Vinay Garg learned counsel who argued, with his
\nusual adroitness, the lead matter on behalf of the writ
\npetitioners urged that with the decision of the Supreme Court
\nreported as 1997 (3) SCC 261 L.Chandra Kumar Vs. UOI the
\ndebate with respect to alternative forums of judicial review
\nand the power of the High Court under Article 226 and Article
\n227 of the Constitution of India has been set to rest. The law
\nbeing that the power of judicial review vested in constitutional
\ncourts is not only an integral part but is a basic feature of the
\nConstitution of India and cannot be curtailed by legislation.
\nLearned counsel was at pains to take us through the growth of
\nlaw on the subject and showed us the drifting currents in the
\nstream of jurisprudence pertaining to judicial review.                 With
\nrespect to clause 4 of Article 227 of the Constitution of India,
\nwhich apparently seeks to take away the jurisdiction of High
\nCourt under Article 227 of the Constitution of India pertaining
\nto Tribunals constituted for Armed Forces, learned counsel
\ndrew our attention to the Constitution Assembly Debates and
\nhighlighted the distinction between the judicial power of
\nsuperintendence           and      the   administrative       power      of
\nsuperintendence          and     urged   that   only      administrative
\nsuperintendence over Tribunals relating to Armed Forces was
\ntaken away from the High Courts and the power of judicial
\nsuperintendence was retained.            Learned counsel urged that<\/p>\n
WP(C) 13360\/2009 & connected matters                   Page 29 of 69<\/span>
\n Section 14 of the Act recognized the original power of the
\nTribunal to adjudicate service disputes relating to members of
\nan Armed Force and the Force and thus urged that qua
\ndecisions of the Tribunal pertaining to service matters the
\npower of the High Court under Article 226 and Article 227 of
\nthe Constitution of India remained intact. Qua Section 15 of
\nthe Act learned counsel submitted that the same recognized
\nthe appellate power of the Tribunal with respect to decisions
\nand sentences by a Court Martial and submitted that qua said
\ndecision of the Tribunal the power of judicial review under
\nArticle 226 and 227 of the Constitution of India was retained
\nbut counsel conceded that exercise thereof would be on very
\nnarrow grounds, on the well-recognized principle evolved by
\nCourts that in relation to dispute on facts, to be gathered or
\ninferred from the evidence led, the judicial review would be
\nlimited to determine whether it is a case of no evidence and no
\nfurther; and on other issues relating to jurisdiction, the judicial
\nreview would be limited to identification of proceedings
\nsuffering from a jurisdiction error or an error of law apparent
\non the face of the record. Counsel highlighted that findings in
\nsentence at a Court Martial are incapable of execution unless
\nconfirmed by an Executive Authority and thus urged that these
\nproceedings are akin to a domestic proceedings in civil
\nservice.     Other learned counsel for the petitioners adopted
\naforenoted line of argument.\n<\/p>\n
29.    Per contra, Sh.Atul Nanda learned senior counsel, who
\nargued with equal aplomb for the respondents urged that as
\nagainst civil jurisprudence, military jurisprudence had grown
\ndifferently and historically Courts in common law and non
\ncommon law jurisdictions had not issued prerogative writs to<\/p>\n
WP(C) 13360\/2009 & connected matters             Page 30 of 69<\/span>
\n military courts or tribunals. Conceding that power of judicial
\nreview under Article 226 of the Constitution was recognized to
\nbe a part of the basic structure of the Constitution, counsel
\nurged that the legislative intent to create an Armed Force
\nTribunal which resulted in the legislative mandate under the
\nArmed Forces Tribunal Act 2007 is to exclude the jurisdiction
\nof the High Court under the Article 226 and Article 227 of the
\nConstitution of India and for which submission learned senior
\ncounsel urged that vis-\u00e0-vis civil service, requirement of
\nhighest standard of discipline in an armed service was
\nessential to a democratic society requiring speedy adjudication
\nof disputes relating to members of an Armed Force and
\ntherefrom learned senior counsel urged that keeping in view
\nsaid distinction between a civil service and a military service,
\non the principle of comity, speedy justice and the requirement
\nof reducing multiplicity of litigation, it has to be held that a
\nHigh Court either does not have or if having, would refrain
\nfrom exercising its power under Article 226 of the Constitution
\nof India. With respect to the power of superintendence under
\nArticle 227 of the Constitution of India, with reference to
\nclause 4 thereof, learned senior counsel urged that the
\ncomplete power of superintendence created under Article 227
\nwas non-applicable to Tribunals or Courts constituted by a law
\nrelating to the Armed Forces and thus counsel urged that even
\njudicial superintendence was taken away with respect to the
\nArmed Forces Tribunal. Learned counsel urged that the power
\nunder Article 226 of the Constitution of India to correct
\ndecisions passed by authorities and persons subordinate to the
\nHigh Court did not extend to issue directions to exercise
\ndiscretion in a particular manner, which power was a part of<\/p>\n
WP(C) 13360\/2009 & connected matters           Page 31 of 69<\/span>
\n the jurisdiction under Article 227 of the Constitution, and thus
\nlearned senior counsel urged that de hors Article 227 of the
\nConstitution of India, the High Court would be powerless to
\nissue any direction to the Tribunal to exercise its jurisdiction in
\na particular manner.\n<\/p>\n
30.    The contention of Sh.Atul Nanda that the power of High
\nCourts to issue writs under Article 226 of the Constitution of
\nIndia must be tested on the touchstone of the well-settled
\nprinciple of military jurisprudence that members of Armed
\nForces are a separate class; so treated in jurisdictions all over
\nthe world, and the consistent view taken by Courts in England,
\nAmerica and Canada is that issues of Military Law have to be
\ntreated as outside the scope and realm of ordinary civil
\njurisprudence requires us to briefly reflect upon the various
\ndecisions cited at the bar by Sh.Atul Nanda learned Senior
\nCounsel. We shall link to this discussion the submission that
\nthe historical background under which the Armed Forces
\nTribunal was created reflects the legislative intent to take
\naway the jurisdiction of High Court under Article 226 and
\nArticle 227 of the Constitution.\n<\/p>\n
31.    Learned senior counsel rightly pointed out, a submission
\nwhich was not controverted by learned counsel for the
\npetitioners, that in time of peace, a standing army was
\nconsidered being a threat to the Rule of Law and this threat to
\na democratic nation by an undisciplined army was one of the
\nfoundation of military law i.e. Code of Discipline and secondly
\nthat issues of military discipline were different than those of
\ndisciplining the civil servant and indeed the exigencies of a
\nmilitary service were qualitatively and quantitatively different
\nthan those of a civil service.\n<\/p>\n
WP(C) 13360\/2009 & connected matters             Page 32 of 69<\/span><\/p>\n
 32.     But, what was submitted by learned counsel for the
\npetitioners was that the aforesaid foundation merely gave
\nbirth    to   the   extent     of      judicial   review   power     which   a
\nconstitutional Court would exercise with respect to affairs of
\nthe military and affairs of civil services.\n<\/p>\n
33.     In the treatise \u2017Introduction to the Study of the Law of the
\nConstitution’ 6th Edition, A.V.Dicey set out the historical
\nelement why it was considered necessary to have a separate
\nset of Codes of Discipline as the foundation for military law.
\nThe learned author opined as under:-\n<\/p>\n
        \u2015As to the Standing Army – A permanent army of paid
\n        soldiers, whose main duty is one of absolute
\n        obedience to commands, appears at first sight to be
\n        an institution inconsistent with that rule of law or
\n        submission to the civil authorities, and especially to
\n        the judges, which is essential to popular or
\n        Parliamentary government; and in truth the
\n        existence of permanent paid forces has often in most
\n        countries and at times in England-notably under the
\n        Commonwealth been found inconsistent with the
\n        existence of what, by a lax though intelligible mode
\n        of speech, is called a free government. The belief
\n        indeed of our statesmen down to a time considerably
\n        later than the Revolution of 1689 was that a standing
\n        army must be fatal to English freedom, yet very soon
\n        after the Revolution it became apparent that the
\n        existence of a body of paid soldiers was necessary to
\n        the safety of the nation. Englishmen, therefore, at
\n        the end of the seventeenth and the beginning of the
\n        eighteenth century, found themselves placed in this
\n        dilemma. With a standing army the country could
\n        not, they feared, escape from despotism; without a
\n        standing army the country could not, they were sure,
\n        avert invasion; the maintenance of national liberty
\n        appeared to involve the sacrifice of national
\nWP(C) 13360\/2009 & connected matters                       Page 33 of 69<\/span>
\n        independence.     Yet English statesmanship found
\n       almost by accident a practical escape from this
\n       theoretical dilemma, and the Mutiny Act, though an
\n       enactment passed in a hurry to meet an immediate
\n       peril, contains the solution of an apparently
\n       insolvable problem.\n<\/p><\/blockquote>\n
       The position of the army in fact was determined by
\n       an adherence on the part of the authors of the first
\n       Mutiny Act to the fundamental principle of English
\n       law, that a soldier may, like a clergyman, incur
\n       special obligations in his official character, but is not
\n       thereby exempted from the ordinary liabilities of
\n       citizenship.\n<\/p><\/blockquote>\n
       The object and principles of the first Mutiny Act of
\n       1689 are exactly the same as the object and
\n       principles of the Army Act, 1881, under which the
\n       English army is in substance now governed.         A
\n       comparison of the two statutes shows at a glance
\n       what are the means by which the maintenance of
\n       military discipline has been reconciled with the
\n       maintenance of freedom, or, to use a more accurate
\n       expression, with the supremacy of the law of the
\n       land.\u2016<\/p>\n<\/blockquote>\n
34.    Similar ethos is to be found in the treatise \u2017The Federalist
\nand Other Constitutional Papers’ by Hamilton, Jay, Madison.\n<\/p>\n
35.    Since at the heart of the matter at hand is the issue
\nwhether this Court can exercise jurisdiction under Article 226
\nand\/or Article 227 of the Constitution of India with respect to
\ndecisions      pronounced        by    the   Armed   Forces      Tribunal
\nconstituted under the Armed Forces Tribunal Act 2007, we
\nneed to embark upon the journey to peep into the past
\nprecedents and see how this jurisprudential concept: of the
\ndifferent requirements of military discipline vis-\u00e0-vis civil<\/p>\n
WP(C) 13360\/2009 & connected matters                 Page 34 of 69<\/span>
\n discipline affected the remedies which could be availed of by
\nmembers of Armed Forces before civil courts.\n<\/p>\n
36.    We deal with the various opinions and decisions cited by
\nSh.Atul Nanda, learned senior counsel.\n<\/p>\n
37.    At the forefront, learned senior counsel had referred to
\nand had read out extracts from \u2017Halsbury’s Laws of England’
\n4th Edition, Vol.41.\n<\/p>\n
38.    We may only point out that the discussion on the subject
\nin \u2017Halsbury’s Laws of England’ is very wide and exhaustive,
\nbut with reference to para 118 of the Commentary, it stands
\nout that as per the treatise, the bar is not absolute. Pertaining
\nto what could be called a writ of error or a writ of certiorari
\nwith which we are familiar with in India, it has been opined
\nthat the order of certiorari, to quote: \u2017will not, therefore, be
\ndirected to an ecclesiastical Court or to a Court which is not
\none of civil jurisdiction, for example a court-martial, unless it is
\nshown that civil rights have been affected.’ (Underlined
\nemphasized)<\/p>\n
39.    Learned senior counsel had relied upon observations in
\nthe decisions reported as 1 Brown 427 (1787) Evelyn Sutton
\nVs. George Johnston. 4 F&F 800 Dawkins Vs. Lord Rokevy.
\n1869 LR QV 888 Dawkins Vs. Paulet. 1898 (1) QB 888 Marks
\nVs. Frogley. 1917 (2) KB 504 King Vs. Army Council Ex-Parte
\nRavenscorft. 1949 (1) All. ER 242 R. Vs. Secretary of State Ex-
\nParte Martyn and 1949 (1) All. ER 373 R. Vs. O.C.Depot Ex-
\nParte Elliot; all of which pertain to opinions rendered by the
\nJudges in England.           Two American decisions by judges in
\nAmerica, reported as 68 US 243 (1863) Ex-Parte Valladingham<\/p>\n
WP(C) 13360\/2009 & connected matters             Page 35 of 69<\/span>
\n and 346 US 137 (1952-1953) Burns Vs. Wilson were also cited.
\nOne decision of the Supreme Court of Canada reported as
\n1956 SC Canada 154 Queen Vs. J.R.C.White was also cited.\n<\/p>\n
40.    Dealing with the two decisions of the U.S.Courts which
\nwere cited, it may be noted that in Ex-parte Vallandigham, the
\nprisoner Vallandigham, a resident of the State of Ohio, and a
\ncitizen of the United States, was arrested at his residence and
\ntaken to Cincinnati on 5.5.1863 and imprisoned.                          On the
\nfollowing day, he was arraigned before a Military Commission
\non the charge of having expressed sympathies for those in
\nArms against the Government of the United States, and for
\nhaving uttered, in a speech at a public meeting, disloyal
\nsentiments and opinions with the purported object and purpose
\nof weakening the power of the Government in its effort for the
\nsuppression of an unlawful rebellion.\n<\/p>\n
41.    The case before the Supreme Court of the United States
\narose on a petition for a certiorari. The Court was concerned
\nwith the 3rd Article of the U.S.Constitution which is the source
\nof the foundation of the judicial power of the Supreme Court of
\nthe United States and the inferior Courts as the Congress may,
\nfrom time to time, ordain and establish. Noting that appellate
\njurisdiction was vested in the U.S.Supreme Court as also the
\ninferior Courts, it was observed that there was no analogy
\nbetween the power given by the Constitution and Law of the
\nUnited States to the Supreme Court and other inferior Courts
\nof the United States, and to the Judges of them, to issue such
\nprocess and the prerogative power available with the Courts in
\nEngland.        The    Court     refused   to   review     or   revise     the
\nproceedings of the Military Commission.\n<\/p>\n
WP(C) 13360\/2009 & connected matters                     Page 36 of 69<\/span><\/p>\n
 42.    It is apparent that the decision was rendered at a very
\nnascent stage of the growth of Jurisprudence in the United
\nStates of America. The decision relates to the year 1863. The
\nobservations in the said decision, do bring out a view which
\nwas sought to be propounded by Sh.Atul Nanda, learned senior
\ncounsel, but we must hasten to add that a meaningful perusal
\nof the decision would reveal that issues of fact, relatable to
\njurisdiction and on merits of the decision of the Military
\nCommission, were sought to be raised in an action akin to a
\nmerit review and the Court declined to exercise such wide
\njurisdiction.\n<\/p>\n
43.    But, later decisions of the Courts in the United States
\nthrow more light as to how the Jurisprudence grew in the
\nUnited States and since one such later decision was relied
\nupon by Sh.Atul Nanda i.e. the one in Burns’s case (supra), we
\nnote the same.         The United States Court of Appeals for the
\nDistrict of Columbia Circuit relied upon the earlier decision
\nreported as 137 U.S. SCR 147 Re Grimley where it was
\nobserved that the law which governs a civil court in the
\nexercise of its jurisdiction over        military    habeas corpus
\napplications cannot simply be assimilated to the law which
\ngoverns the exercise of that power in other instances. It is sui
\ngeneris; it must be so, because of the peculiar relationship
\nbetween the civil and military law. But, relevant would it be to
\nhighlight that in the majority opinion, penned by Chief Justice
\nVinson, in which opinion Justice Reed, Justice Burton and
\nJustice Clark joined, at page No.142 of the opinion, a caveat is
\nto be found, wherein it was observed:-\n<\/p>\n
       \u2015We have held before that this does not displace the
\n       civil courts jurisdiction over an application for
\nWP(C) 13360\/2009 & connected matters                Page 37 of 69<\/span>
\n        habeas corpus from the military prisoner. Gusik Vs.
\n       Schilder 340 U.S. 128 (1950). But these provisions
\n       do mean that when a military decision has dealt
\n       fully and fairly with an allegation raised in that
\n       application, it is not open to a federal civil court to
\n       grant the writ simply to re-evaluate the evidence.
\n       Whelchel Vs. Mc-Donald 340 U.S. 122 (1950).\u2016
\n       (Underlined emphasized).\n<\/p><\/blockquote>\n
44.    On facts, petitioners therein tried separately by Air Force
\nCourt Martial on the Island of Guam were found guilty of
\nmurder and rape and were sentenced to death.                     The
\npetitioners had exhausted all remedies available to them
\nunder the Articles of War for review of their convictions by the
\nMilitary Tribunals. They then filed petitions for writs of habeas
\ncorpus in the Unites States District Court for the District of
\nColumbia alleging that they had been denied due process of
\nlaw.    They charged of being subjected to illegal detention;
\nunder coercion confessions being extorted and counsel of their
\nchoice denied to them; they alleged that the military
\nauthorities had suppressed evidence favourable to them and
\nhad procured perjured testimony against them and lastly
\nurged that their trials were conducted in an atmosphere of
\nterror and vengeance, conducive to mob violence instead of
\nfair-play. The District Court dismissed the applications without
\nhearing evidence, and without further review, after satisfying
\nitself that the Court Martial, which tried petitioners had
\njurisdiction over their person. The Court of Appeals affirmed
\nthe District Courts Judgment, but after expanding the scope of
\nreview by giving petitioners’ allegation full consideration on
\ntheir merits, reviewing in detail the mass of evidence to be
\nfound in the transcripts of the trial and other proceedings
\nbefore the Military Court. It was in this backdrop of the past<\/p>\n
WP(C) 13360\/2009 & connected matters             Page 38 of 69<\/span>
\n litigation, observations made in the judgment cited have to be
\nunderstood and needless to state the caveat lodged and as
\nextracted by us in the preceding para has to be kept in mind,
\nwith further amplification that in the next but one page i.e.
\npage No.144, Vinson CJ categorically held:-\n<\/p>\n
       \u2015These records make it plain that the military courts
\n       have heard petitioners out on every significant
\n       allegations which they now urge. Accordingly, it is
\n       not the duty of the civil courts simply to repeat that
\n       process – to re-examine and re-weigh each item of
\n       evidence of the occurrence of events which tend to
\n       prove or disprove one of the allegations in the
\n       applications for habeas corpus. It is the limited
\n       function of the civil courts to determine whether the
\n       Military has given fair consideration to each one of
\n       these claims. Whelchel Vs.Mc-Donald (supra). We
\n       think they have.\u2016 (Underlined emphasized).\n<\/p><\/blockquote>\n
45.    The action in Evelyn Sutton’s case (supra), Dawkins Vs.
\nLord Rokeby’s case (supra), Dawkins Vs. Paulet’s case (supra)
\nand Marks’s (case) supra pertained to actions brought before a
\ncivil Court for damages.          The action in Evelyn Sutton’s case
\n(supra) was by a Captain in the Navy who accused his
\nCommander-in-Chief of acting in malice, under colour and
\npretence, of falsely, maliciously and wrongfully alleging
\noffences committed by the plaintiff, after at the trial by a Court
\nMartial, the plaintiff was honorarily acquitted.        The action in
\nDawkins Vs. Lord Rokeby’s case (supra) was against the
\nCommander of the Army, on the allegation that on account of
\na malicious action initiated against the plaintiff he was falsely
\nimprisoned and removed from service. Damages were sought.
\nThe action in Dawkins Vs. Paulet’s case (supra) was also for
\ndamages on account of stated libel.             The defendant had
\naddressed a communication to the Adjutant-General of the<\/p>\n
WP(C) 13360\/2009 & connected matters                Page 39 of 69<\/span>
\n Army reflecting on the character and capacity of the plaintiff; a
\nCaptain in the Coldstream Guards with a request that the
\nconduct be investigated by a Court of Inquiry in which the
\nplaintiff lost his commission and was compelled to leave the
\nregiment. The action in Marks’s case (supra) was on the tort
\nof assault and false imprisonment by the plaintiff, an Army
\nMan and subjected to Military Law, at the hands of his superior
\nofficers.\n<\/p>\n
46.    Various observations in the decisions aforenoted which
\nwere relied upon which state that civil courts jurisdiction
\ncannot be invoked to redress grievances arising between
\npersons subject to military law and that the legislature
\nexcluded by interference of the civil courts must be read to
\nconfine all matter of complaint to the military authorities, have
\nto be understood with reference to the nature of the actions
\nbrought before the common Courts in England. Suffice would
\nit be to state that merely because an indictment by a superior
\nofficer failed to hold good at a trial before a military court or
\nthe nature of arrest was found to be wanting or force was used
\nwhile arresting a person subject to military discipline, civil
\nactions were held not maintainable. It may be noted that in
\neach case active malice was not established at the trial before
\nthe military       court, and it was held   that it would be
\nimpermissible to have a trial before a common court on the
\nissue of active malice. We may simply highlight further that
\nthese decisions have no concern and do not relate to the
\npower of superintendence exercised by superior courts in
\nEngland to issue various writs.\n<\/p>\n
WP(C) 13360\/2009 & connected matters           Page 40 of 69<\/span><\/p>\n
 47.    The decision in Ex-Parte Ravenscroft’s case (supra) is an
\nauthority on the point that: (i) a civil court will not intervene in
\nmatters relating to military law prescribing rules for the
\nguidance of officers when equally appropriate remedy was
\nopen to the officer concerned under the Army Act; (ii) the civil
\ncourt will not entertain an action relatable to a discretionary
\npower of the Army Council to assemble a Court of Inquiry; for
\nthe obvious reason no order can be issued to an authority to
\nexercise a discretionary discretion in a particular way; and (iii)
\nthe    remedy       by    mandamus     would   not    be     issued   in
\ncircumstances which can make the mandamus in-effective at
\nthe hand of the authority to whom the mandamus is issued.
\nBut relevant would it be to note that Chief Justice Viscount, at
\npage 511 of the opinion, clearly stated:-\n<\/p>\n
       \u2015I do not, however, wish to be taken as deciding that
\n       in no circumstances could this Court issue a writ of
\n       mandamus to the Army Council even on proof of a
\n       breach of duty which the applicant has a right to
\n       enforce. Upon so important and far reaching a
\n       proposition of law I desire to reserve my opinion.\u2016\n<\/p><\/blockquote>\n
48.    In the concurring opinion, Ridley J. also observed:-\n<\/p>\n
       \u2015If there be a particular duty imposed by statute
\n       which must be obeyed implicitly and which allows no
\n       scope for discretion, matters assume a different
\n       aspect.\u2016\n<\/p><\/blockquote>\n
49.    The aforesaid observations have to be read in the
\ncontext of the view taken in the said decision when the Court
\nrefused to exercise its power of superintendence and refused
\nto issue a writ of mandamus to the Army Council commanding
\nthem to cause a Court of Inquiry to re-assemble to hear the
\ncharge, but said that in an appropriate case, judicial review
\nwas permissible by a civil court.\n<\/p>\n
WP(C) 13360\/2009 & connected matters                 Page 41 of 69<\/span><\/p>\n
 50.    The decision in R. Vs. Secretary of State Ex-Parte Martyn
\nis a short and a cryptic decision, without much discussion, but
\nrelevant would it be to note that even in said decision it was
\nobserved: \u2015……. But it is not a matter for this Court, which can
\nonly interfere with military courts and matters of military law
\nin so far as the civil rights of the soldier or other person with
\nwhom they deal may be affected.\u2016 The aforesaid observations
\nmake it clear that the Court did not lay down that proceedings
\nor decisions before military courts or matters of military law
\nwere completely immune to a judicial review before a civil
\ncourt.\n<\/p>\n
51.    In the decision of R. Vs. O.C.Depot Ex.Parte Elliot (supra),
\na deserter arrested abroad and subjected to a Court Martial
\nwas the subject matter of a writ of habeas corpus alleging that
\nhe was not a person subject to military law and thus his
\ncustody was wrongful. The issue in question had been gone
\ninto by the Divisional Court and on merit the detention was
\nheld to be lawful. The matter was thereafter considered by the
\nKing’s Bench Division.          The Division Bench found on merits
\nthat the person concerned was a deserter and on merit found
\nthat though released for two months, had received orders of
\nrecall which were disobeyed.           Thus, observations in the said
\ndecision which were relied upon by learned counsel are of
\nhardly any use for the reason the decision shows that the
\nKing’s Bench Division went into the merits and decided against
\nthe prisoner who claimed of not being subject to the military
\ncourt by finding as a matter of fact and reasoning that he was
\na deserter.\n<\/p>\n
WP(C) 13360\/2009 & connected matters                Page 42 of 69<\/span><\/p>\n
 52.    The decision of the Supreme Court of Canada in
\nJ.R.C.White’s case (supra) was on an action by J.R.C.White, a
\nformer member of the Royal Canadian Mounted Police,
\nquestioning his conviction by a Superintendent of the Force for
\nthe    misdemeanour          of    condoning    the   consumption     of
\nintoxicating liquor by a female juvenile, and of associating with
\na female of questionable character and registering at a hotel
\nunder an assumed name.                 The Court of Appeal for British
\nColumbia reversed an order by the Court of First Instance
\nrefusing certiorari. The Supreme Court of Canada allowed the
\nappeal and set aside the judgment of the Court of Appeal and
\nrestored the order of the Court of First Instance.             It may be
\nnoted that J.R.C.White was dismissed from the force and had
\nquestioned the verdict on 15 counts all of which related to
\nwhat we may call a merit review.\n<\/p>\n
53.    No doubt, the Canadian Supreme Court observed that the
\nParliament had specified the punishable breaches of discipline
\nand has equipped the Force with its own courts for dealing
\nwith them; and it needs no amplification to demonstrate the
\nobject of that investment; and that such a court is prima facie
\nto be looked upon as being the exclusive means by which that
\nparticular purpose is to be attained, but hastened to add:-\n<\/p>\n
       \u2015Unless, therefore, the powers given are abused to
\n       such a degree as puts action taken beyond the
\n       purview of the statute or unless the action is itself
\n       unauthorized, that internal management is not to
\n       be interfered with by any superior court in exercise
\n       of its long established supervisory jurisdiction over
\n       inferior tribunals.\u2016\n<\/p><\/blockquote>\n
54.    It is also important to note that the Canadian Supreme
\nCourt found that the Court of First Instance had found that the<\/p>\n
WP(C) 13360\/2009 & connected matters                  Page 43 of 69<\/span>
\n materials furnished by affidavits showed that it could not be
\ninferred that the proceedings infringed were not supported by
\nevidence or were outside the authority of the statute or the
\nunderlying principles of judicial process to be deemed annexed
\nto the legislation concerned.          It is apparent that even the
\nCanadian Supreme Court was conscious of judicial review to be
\nexercised on the known principles of writ of error or a writ of
\ncertiorari, highlighted by the fact that the Canadian Supreme
\nCourt found that it was not shown that the proceedings
\ninfringed were not supported by any evidence nor was it
\nshown that any underlying principle of judicial process which
\nwas a part of the legislation concerned was infringed.\n<\/p>\n
55.    It would thus be incorrect to urge that world over, the
\nordinary civil courts were historically not exercising any kind of
\nsupervisory control over military courts and tribunals.\n<\/p>\n
56.    It may be true that in Col.Prithipal Singh Bedi’s case
\n(supra), way back in the year 1982, the Supreme Court
\nexpressed an opinion that a single judicial review forum was
\ndesirable not only qua decisions and sentences at a Court
\nMartial but even to adjudicate service disputes between
\nmembers of an Armed Force and the Force, but it has to be
\nkept in mind, as would be noticed hereinafter, that the law
\nrelating to judicial review by superior courts being a basic
\nfeature of the Constitution had yet to be developed. But that
\napart, it needs to be highlighted that in para 45 of its decision,
\nwhile expressing the desirability to constitute a single judicial
\nreview forum for members of the Armed Forces, the Supreme
\nCourt hedged the words: \u2017which must truly be a judicial review
\nforum’.\n<\/p>\n
WP(C) 13360\/2009 & connected matters               Page 44 of 69<\/span><\/p>\n
 57.    We shall be dealing with what has been interpreted to be
\na truly judicial review forum in the context of denuding High
\nCourt jurisdiction under Article 226 of the Constitution of India
\nwith reference to the decision of the Supreme Court reported
\nas UOI Vs. R.Gandhi 2010 (5) SCALE 514 and would humbly
\nrequest the read of our opinion to be patient with us.         We
\nassure that we shall so revert.\n<\/p>\n
58.    We have noted hereinabove, in para 15, the legislative
\nintent which could be traced to the 169th report of the Law
\nCommission titled: \u2017Amendment of Army, Navy and Air Force
\nActs – April 1999′ and would simply highlight that the Law
\nCommission, vide para 5.1.1 of its report, recommended that
\nthe proposed tribunal should not be a totally Civil Appellate
\nTribunal (as has been provided in the United Kingdom) opining
\nthat, in the Indian context this may not be conducive to the
\ndiscipline of the Armed Force and the Law Commission
\nsuggested a hybrid Tribunal consisting of Civilian Judges and
\nother members drawn from the retired Armed Force Personnel.
\nIndeed, as noted by us in para 19 above, the Armed Force
\nTribunal which has been constituted under the Act is a hybrid
\nTribunal consisting of civilian Judges and retired Members
\ndrawn from the Armed Forces.           We highlight that the
\nappointment of Members of the Tribunal is by the Executive
\nalbeit with consultation with the Chief Justice of India.      The
\nlegal consequence of this would be discussed by us a little
\nlater when we analyze the decision of the Supreme Court in
\nUOI Vs. R.Gandhi (supra).\n<\/p>\n
59.    The discussion during the Constituent Assembly Debates
\non 16.10.1949 pertaining to draft Article 112 of the draft<\/p>\n
WP(C) 13360\/2009 & connected matters           Page 45 of 69<\/span>
\n constitution which ultimately resulted in Article 136 of the
\nConstitution of India as we find and Article 203 of the draft
\nconstitution which finds itself as Article 227 of the Constitution
\nof India is of importance on the subject and thus we spend a
\nlittle time on the subject.\n<\/p>\n
60.    Sh.T.T.Krishnamachari moved an amendment No364 and
\nsuggested Article 112 as proposed to be re-drafted and clause
\n4 to be inserted after clause 3 to Article 203 of the draft of the
\nproposed constitution as under:-\n<\/p>\n
       \u2015112. (1) The Supreme Court may, in its discretion,
\n       grant special leave to appeal from any judgment,
\n       decree, determination sentence or order in any cause
\n       or matter passed or made by any Court or tribunal in
\n       the territory of India.\n<\/p><\/blockquote>\n
       (2) Nothing in clause (1) of this article shall apply to
\n       any judgment, determination, sentence or order
\n       passed or made by any court or tribunal constituted
\n       by or under any law relating to the Armed Forces.\u2016
\n                                   X   X   X
\n       \u2015(4) Nothing in this Article shall be deemed to extend
\n       the powers of superintendence of a High Court over
\n       any Court or Tribunal constituted by or under any law
\n       relating to the Armed Forces.\u2016\n<\/p><\/blockquote>\n
61.    Prof.Shibban Lal Saxena immediately rose to his feet
\nstating that he wish to bring a charge of breach of faith against
\nDr.Ambedkar in this matter. He stated that sometime ago he
\nhad tabled an amendment to Article 112 in which he had
\nspecifically desired that provision should be made that persons
\nsentence to death by Court Martial should be able to appeal to
\nthe Supreme Court and Dr.Ambedkar had assured that such
\npersons are covered by Article 112 and the Supreme Court
\ncould take notice of such persons under its said powers. He<\/p>\n
WP(C) 13360\/2009 & connected matters             Page 46 of 69<\/span>
\n raised an issue of probably the discussion in the House being
\nreported in the press and the Defence Department trying to
\nstrengthen      itself   and     Mr.T.T.Krishnamachari   extending   a
\nhelping hand to the Defence Department.             Stating that this
\nwas not fair as he had withdrawn his amendment on the
\nassurance that the law protected members of an Armed Force
\nagainst wrong decisions at a Court Martial. He highlighted that
\nafter the Second World War, in Britain a Commission was
\nappointed to study the administration of Military Court Martials
\nand recommended procedures to be made more civilized and
\nthat in the name of discipline people should not be butchered.
\nHe concluded his protest by stating that not only considered
\nthe provision unfair but against the promise given to the
\nHouse by Dr.Ambedkar.\n<\/p>\n
62.    After Sh.R.K.Shidhava, Sh.B.Das and Pandit Thakur Das
\nBhargava made interjections, Dr.B.R.Ambedkar responded in
\nthe following words:-\n<\/p>\n
        \u2015Mr.President Sir, in view of the observations made
\n        by my hounorable Friend, Prof.Shibban Lal Saksena,
\n        it has become incumbent upon me to say something
\n        in relation to the proposed article moved by my
\n        honourable Friend, Mr.T.T.Krishnamachari.         It is
\n        quite true that on the occasion when we considered
\n        article 112 and the amendment moved by my
\n        honourable Friend, Prof. Shibban Lal Saksena. I did
\n        say that under article 112 there would be
\n        jurisdiction in the Supreme Court to entertain an
\n        appeal against any order made by a Court-Martial.
\n        Theoretically that proposition is still correct and
\n        there is no doubt about it in my mind. But what I
\n        forgot to say is this: That according to the rulings of
\n        our High Courts as well as the rulings of the British
\n        courts including those of the Privy Council, it has
\n        been a well recognized principle that civil courts,
\n        although they have jurisdiction under the statute will
\nWP(C) 13360\/2009 & connected matters                Page 47 of 69<\/span>
\n         not exercise that jurisdiction in order to disturb any
\n        finding or any decision given or order made by the
\n        Court-martial. I do not wish to go into the reason
\n        why the civil courts of superior authority, which
\n        notwithstanding the fact that they have this
\n        jurisdiction have said that they will not exercise that
\n        jurisdiction; but the fact is there and I should have
\n        thought that if our courts in India follow the same
\n        decision which has been given by British courts – the
\n        House of Lords, the King’s Bench Division as well as
\n        the Privy Council and if I may say so also the
\n        decision given by our Federal Court in two or three
\n        cases which were adjudicated upon by them – there
\n        would be no necessity for clause (2); but
\n        unfortunately the Defence Ministry feels that such
\n        an important matter ought not to be left in a
\n        condition of doubt and that there should be a
\n        statutory provision declaring that none of the
\n        superior civil courts whether it is a High Court or the
\n        Supreme Court shall exercise such jurisdiction as
\n        against a court or tribunal constituted under any law
\n        relating to the Armed Forces.\n<\/p><\/blockquote>\n
        This question is not merely a theoretical question
\n        but is a question of great practical moment because
\n        it involves the discipline of the Armed Forces. If
\n        there is anything with regard to the armed forces, it
\n        is the necessity of maintaining discipline.        The
\n        Defence Ministry feel that if a member of the armed
\n        forces can look up either to the Supreme Court or to
\n        the High Court for redress against any decision
\n        which has been taken by a court or tribunal
\n        constituted for the purpose of maintaining discipline
\n        in the armed forces, discipline would vanish. I must
\n        say that this is an argument against which there is
\n        no reply. That is why clause (2) has been added in
\n        article 112 by this particular amendment and a
\n        similar provision is made in the provisions relating to
\n        the powers of superintendence of the High Courts.
\n        That is my justification why it is now proposed to put
\n        in clause (2) of Article 112.\n<\/p><\/blockquote>\n
WP(C) 13360\/2009 & connected matters             Page 48 of 69<\/span><\/p>\n
         I should, however, like to say this that clause (2)
\n        does not altogether take away the powers of the
\n        Supreme Court or the High Court. The law does not
\n        leave a member of the armed forces entirely to the
\n        mercy of the tribunal constituted under the
\n        particular law. For, notwithstanding clause (2) of
\n        article 112, it would still be open to the Supreme
\n        Court or to the High Court to exercise jurisdiction, if
\n        the court martial has exceeded the jurisidiction
\n        which has been given to it or the power conferred
\n        uon it by the law relating to armed forces. It will be
\n        open to the Supreme Court as well as to the High
\n        Court to examine the question whether the exercise
\n        of jurisdiction is within the ambit of the law which
\n        creates and constitutes this court or tribunal.
\n        Secondly, if the court-martial were to give a finding
\n        without any tribunal. Secondly, if the court martial
\n        were to give a finding without any evidence, then,
\n        again, it will be open to the Supreme Court as well
\n        as the High Court to entertain an appeal in order to
\n        find out whether there is evidence. Of course, it
\n        would not be open to the High Court or the Supreme
\n        Court to consider whether there has been enough
\n        evidence. That is a matter which is outside the
\n        jurisdiction of either of these Courts. Whether there
\n        is evidence or not, that is a matter which they could
\n        entertain. Similarly, if I may say so, it would be
\n        open for a member of the armed forces to appeal to
\n        the courts for the purpose of issuing prerogative
\n        writs in order to examine whether the proceedings
\n        of the court martial against him are carried on under
\n        any particular law made by Parliament or whether
\n        they were arbitrary in character. Therefore, in my
\n        opinion, this article, having regard to the difficulties
\n        raised by the Defence Ministry, is a necessary
\n        article. It really does not do anything more but give
\n        a statutory recognition to a rule that is already
\n        prevalent and which is recognized by all superior
\n        courts.\u2016 (emphasis supplied)\n<\/p><\/blockquote>\n
63.    The aforenoted illuminating debate at the Constitution
\nAssembly as afore extracted, should in our opinion, settle the
\ncontroversy sought to be raised by Sh.Atul Nanda learned
\nsenior counsel. Two issues would probably be settled. First
\nWP(C) 13360\/2009 & connected matters              Page 49 of 69<\/span>
\n that the drafters of the Constitution clearly understood that
\nhistorically, jurisprudence in civilized democracies recognized
\npower of judicial review over decisions and sentences of Court
\nMartials and notwithstanding insertion of Clause 4 in Article
\n227 of the Constitution of India, the Constituent Assembly
\nrecognized the power of judicial superintendence over Court
\nMartials    and     this   position,   as   would   be   noted       by   us
\nhereinunder, came to be recognized by the Supreme Court,
\neven without a reference to the aforenoted debate.\n<\/p>\n
64.    Indeed, in the decision reported as AIR 1990 SC 1984
\nS.N.Mukherjee Vs. UOI, in para 41 the Supreme Court observed
\nas under:-\n<\/p>\n
       \u201541. Before referring to the relevant provisions of
\n       the Act and the Rules it may be mentioned that the
\n       Constitution contains certain special provisions in
\n       regard to members of the Armed Forces. Article 33
\n       empowers Parliament to make law determining the
\n       extent to which any of the rights conferred by Part III
\n       shall, in their application to the members of the
\n       Armed Forces, be restricted or abrogated so as to
\n       ensure the proper discharge of their duties and the
\n       maintenance of discipline amongst them. By clause
\n       (2) of Article 136 the appellate jurisdiction of this
\n       Court under Article 136 of the Constitution has been
\n       excluded in relation to any judgment, determination,
\n       sentence or order passed or made by any Court or
\n       tribunal constituted by or under any law relating to
\n       the Armed Forces. Similarly clause (4) of Article 227
\n       denies to the High Courts the power of
\n       superintendence over any Court or tribunal
\n       constituted by or under any law relating to the
\n       Armed Forces. This Court under Article 32 and the
\n       High Courts under Article 226 have, however, the
\n       power of judicial review in respect of proceedings of
\n       courts-martial and the proceedings have resulted in
\n       denial of the fundamental rights guaranteed under
\n       Part III of the Constitution or if the said proceedings<\/p>\n
WP(C) 13360\/2009 & connected matters                 Page 50 of 69<\/span>
\n        suffer from a jurisdictional error or any error of law
\n       apparent on the face of the record.\u2016\n<\/p><\/blockquote>\n
65.    A Division Bench of this Court, in the decision reported as
\n58 (1995) DLT 339 Ex.Maj.R.S.Budhwar Vs. UOI & Ors.,
\nsurveying as many as 42 decisions on the subject and noting
\nthe decision in S.N.Mukherjee’s case (supra) held in para 28 of
\nthe report as under:-\n<\/p>\n
       \u201528. The jurisdiction of this Court under Article 226
\n       is, therefore, defined and is limited to the extent of
\n       finding it whether there is an error of jurisdiction and
\n       it is a case of total lack of evidence. This Court, as
\n       has been consistently held, does not sit as a Court of
\n       Appeal. In case legal evidence was available on
\n       which a finding could be given, the sufficiency or
\n       otherwise was for the Authority to decide and this
\n       Court cannot substitute its opinion for that of Court-
\n       Martial.\u2016\n<\/p><\/blockquote>\n
66.    The Constitutional Bench decision of the Supreme Court
\nreported as 1973 (4) SCC 225 Keshwananda Bharti Vs. State of
\nKerala & Anr. laid down the principle of the basic structure of
\nthe Constitution being inviolable and we may hasten to add
\nthat though the Bench did not specifically hold that judicial
\nreview is a part of basic structure of the Constitution but
\nexpressly held that Rule of Law is essentially a part of the
\nbasic structure.       Judicial review was however held to be an
\nintegral part of the Constitution. We may also note that Justice
\nY.V.Chandrachud (as His Lordship then was), in the decision
\nreported as 1975 Supp. SCC 1 Indira Nehru Gandhi Vs. Raj
\nNarain & Anr. held in the context of elections to elect
\nrepresentatives to the Lok Sabha, that judicial review cannot
\nbe considered to be a part of the basic structure of the
\nConstitution. However, a meaningful reading of the opinion of
\nY.V.Chandrachud (CJ) in the decision reported as 1980 (3) SCC
\nWP(C) 13360\/2009 & connected matters             Page 51 of 69<\/span>
\n 625 Minerva Mills Ltd. & Ors. Vs. UOI & Ors. would reveal that
\nHis Lordship held judicial review with respect to legislative
\nactions as a part of the basic structure of the Constitution. The
\nseparate opinion of P.N.Bhagwati, J. (as His Lordship then was),
\nalso upheld judicial review with respect to legislative actions
\nas a part of the basic structure of the Constitution, but His
\nLordship hedged the opinion with a caveat in the following
\nwords:-\n<\/p>\n
        \u2015Para 87……..I am of the view that if there is one
\n        feature of our Constitution which, more than any
\n        other, is basic and fundamental to the maintenance
\n        of democracy and the rule of law, it is the power of
\n        judicial review and it is unquestionably, to my mind,
\n        part of the basic structure of the Constitution. Of
\n        course, when I say this I should not be taken to
\n        suggest that effective alternative institutional
\n        mechanisms or arrangements for judicial review
\n        cannot be made by Parliament. (Underlined
\n        emphasized).\u2016\n<\/p><\/blockquote>\n
67.    In his separate opinion in the decision reported as 1981
\n(2) SCC 362 Waman Rao & Ors. Vs. UOI, Bhagwati, J. (as His
\nLordship then was) in para 64 of the opinion reiterated that
\npara 77 and paras 80 to 102 of his opinion in Minerva Mills’
\ncase (supra) be read as part of his opinion and thereby
\nreiterated the view that notwithstanding judicial review being
\na feature       basic    to   the      Constitution,   nothing    prevented
\nParliament to enact a law having arrangements for judicial
\nreview through alternative institutional mechanisms.\n<\/p>\n
68.    The aforesaid line of reasoning adopted by Bhagwati, J.
\nwas applied in full vigour in the decision reported as 1987 (1)
\nSCC 124 S.P.Sampath Kumar Vs. UOI & Ors. in para 3 whereof
\nit was observed that although power of judicial review is an<\/p>\n
WP(C) 13360\/2009 & connected matters                     Page 52 of 69<\/span>
\n integral part of our Constitutional system and without it there
\nwill be no government of laws and the rule of law would
\nbecome a teasing illusion and a promise of unreality and thus
\njudicial review cannot be altogether abrogated by Parliament,
\nit can certainly, without in any way violating the basic
\nstructure doctrine, set up alternative institutional mechanisms
\nor arrangements for judicial review.                 But, to our mind, His
\nLordship made a very broad and a sweeping statement in said
\npara 3 by observing that this view was the majority view of the
\nJudges who decided             Minerva Mills’ case (supra).                The
\nobservations in para 3: It is undoubtedly true that my
\njudgment in Minerva Mills Ltd. case was a minority judgment
\nbut so far as this aspect is concerned, the majority Judges also
\ntook the same view and held that judicial review is a basic and
\nessential feature of the Constitution and it cannot be
\nabrogated without affecting the basic structure of the
\nConstitution and it is equally clear from the same decision that
\nthough judicial review cannot be altogether abrogated by
\nParliament it can certainly, without in any way violating the
\nbasic     structure      doctrine       set   up     effective     alternative
\ninstitutional mechanisms or arrangements for judicial review.\n<\/p>\n
69.     The majority opinion penned by Ranganatha Misra, J. (as
\nhis   Lordship      then    was)       held   that    effective    alternative
\ninstitutional mechanisms or arrangements for judicial review
\ncan be made by Parliament and as long as a Tribunal met the
\nmandate of being a real substitute for the High Court, not only
\nin form but even in content.\n<\/p>\n
70.     The concurring opinions of the Constitution Bench in
\nS.P.Sampath Kumar’s case laid the foundation that the basic<\/p>\n
WP(C) 13360\/2009 & connected matters                       Page 53 of 69<\/span>
\n feature of the Constitution of judicial review could be
\npreserved through alternative dispute resolution mechanism
\nas long as the same were a de jure and de facto substitute for
\nHigh Courts.\n<\/p>\n
71.    Two decisions pronounced in the year 1993 incisively
\nreviewed the legal position with reference to judicial review
\nexercised by superior courts in the Indian context i.e. the High
\nCourts exercising power under Article 226 and Article 227 of
\nthe Constitution of India.             The first was a 3 Judge bench
\ndecision of the Supreme Court reported as 1993 (4) SCC 119
\nR.K.Jain Vs. UOI and the second being a full Bench decision of
\nthe Andhra Pradesh High Court reported as 1993 (3) ALT 471
\nSakinala Hari Nath Vs. State of A.P.             The main opinion in
\nR.K.Jain’s case, penned by K.Ramaswamy, J. with which
\nAhmadi, J. and Punchhi, J. concurred, in paras 66, 67 and 76
\nobserved as under:-\n<\/p>\n
        \u201566. In S.P.Sampath Kumar Vs. Union of India this Court
\n        held that the primary duty of the judiciary is to interpret
\n        the Constitution and the laws and this would
\n        predominantly be a matter fit to be decided by the
\n        judiciary, as judiciary alone would be possessed of
\n        expertise in this field and secondly the constitutional
\n        and legal protection afforded to the citizen would
\n        become illusory, if it were left to the executive to
\n        determine the legality of its own action.              The
\n        Constitution has, therefore, created an independent
\n        machinery i.e. judiciary to resolve disputes, which is
\n        vested with the power of judicial review to determine
\n        the legality of the legislative and executive actions and
\n        to ensure compliance with the requirements of law on
\n        the part of the executive and other authorities. This
\n        function is discharged by the judiciary by exercising the
\n        power of judicial review which is a most potent weapon
\n        in the hands of the judiciary for maintenance of the rule
\n        of law. The power of judicial review is an integral part of
\nWP(C) 13360\/2009 & connected matters                 Page 54 of 69<\/span>
\n         our constitutional system and without it, there will be no
\n        government of laws and the rule of law would become a
\n        teasing illusion and a promise of unreality. The judicial
\n        review, therefore, is a basic and essential feature of the
\n        Constitution and it cannot be abrogated without
\n        affecting the basic structure of the Constitution. The
\n        basic and essential feature of judicial review cannot be
\n        dispensed with but it would be within the competence of
\n        Parliament to amend the Constitution and to provide
\n        alternative institutional mechanism or arrangement for
\n        judicial review, provided it is no less efficacious than the
\n        High Court. It must, therefore, be read as implicit in the
\n        constitutional scheme that the law excluding the
\n        jurisdiction of the High Court under Articles 226 and 227
\n        permissible under it, must not leave a void but it must
\n        set up another effective institutional mechanism or
\n        authority and vest the power of judicial review in it
\n        which must be equally effective and efficacious in
\n        exercising the power of judicial review. The tribunal set
\n        up under the Administrative Tribunals Act, 1985 was
\n        required to interpret and apply Articles 14, 15 and 16
\n        and 311 in quite a large number of cases. Therefore,
\n        the personnel manning the administrative tribunal in
\n        their determinations not only require judicial approach
\n        but also knowledge and expertise in that particular
\n        branch of constitutional and administrative law. The
\n        efficacy of the administrative tribunal and the legal input
\n        would undeniably be more important and sacrificing the
\n        legal input and not giving it sufficient weightage would
\n        definitely impair the efficacy and effectiveness of the
\n        Administrative Tribunal. Therefore, it was held that an
\n        appropriate rule should be made to recruit the
\n        members; and consult the Chief Justice of India in
\n        recommending appointment of the Chairman, Vice-
\n        Chairman and Members of the Tribunal and to constitute
\n        a committee presided over by Judge of the Supreme
\n        Court to recruit the members for appointment. In M.B.
\n        Majumdar Vs. Union of India when the members of CAT
\n        claimed parity of pay and superannuation as is available
\n        to the Judges of the High Court, this Court held that they
\n        are not on a par with the judges but a separate
\n        mechanism created for their appointment pursuant to
\n        Article 323-A of the Constitution. Therefore, what was
\n        meant by this Court in Sampath Kumar case ratio is that
\n        the tribunals when exercise the power and functions, the
\nWP(C) 13360\/2009 & connected matters              Page 55 of 69<\/span>
\n         Act created institutional alternative mechanism or
\n        authority to adjudicate the service disputations. It must
\n        be effective and efficacious to exercise the power of
\n        judicial review. This Court did not appear to have meant
\n        that the tribunals are substitutes of the High Court under
\n        Articles 226 and 227 of the Constitution. J.P.Chopra Vs.
\n        Union of India merely followed the ratio of Sampath
\n        Kumar.\n<\/p><\/blockquote>\n
        67. The tribunals set up under Articles 323-A and 323-B
\n        of the Constitution or under an Act of legislature are
\n        creatures of the Statute and in no case can claim the
\n        status as Judges of the High Court or parity or as
\n        substitutes. However, the personnel appointed to hold
\n        those offices under the State are called upon to
\n        discharge judicial or quasi-judicial powers. So they must
\n        have judicial approach and also knowledge and
\n        expertise in that particular branch of constitutional,
\n        administrative and tax laws. The legal input would
\n        undeniably be more important and sacrificing the legal
\n        input and not giving it sufficient weightage and teeth
\n        would definitely impair the efficacy and effectiveness of
\n        the judicial adjudication. It is, therefore, necessary that
\n        those who adjudicate upon these matters should have
\n        legal expertise, judicial experience and modicum of legal
\n        training as on many an occasion different and complex
\n        questions of law which baffle the minds of even trained
\n        judges in the High Court and Supreme Court would arise
\n        for discussion and decision.\n<\/p><\/blockquote>\n
                                   X   X   X\n<\/p><\/blockquote>\n
        76. Before parting with the case it is necessary to
\n        express our anguish over the ineffectivity of the
\n        alternative mechanism devised for judicial reviews. The
\n        Judicial review and remedy are fundamental rights of the
\n        citizens. The dispensation of justice by the tribunals is
\n        much to be desired. We are not doubting the ability of
\n        the members or Vice-Chairmen (non-Judges) who may
\n        be experts in their regular service. But judicial
\n        adjudication is a special process and would efficiently be
\n        administered by advocate Judges. The remedy of appeal
\n        by special leave under Article 136 to this Court also
\n        proves to be costly and probative and far-flung distance
\n        too is working as constant constraint to litigant public
\n        who could ill afford to reach this Court. An appeal to a
\nWP(C) 13360\/2009 & connected matters             Page 56 of 69<\/span>
\n         Bench of two Judges of the respective High Courts over
\n        the orders of the tribunals within its territorial
\n        jurisdiction on questions of law would assuage a growing
\n        feeling of injustice of those who can ill afford to
\n        approach the Supreme Court. Equally the need for
\n        recruitment of members of the Bar to man the Tribunals
\n        as well as the working system by the tribunals need
\n        fresh look and regular monitoring is necessary. An
\n        expert body like the Law Commission of India would
\n        made an in-depth study in this behalf including the
\n        desirability to bring CEGAT under the control of Law and
\n        Justice Department in line with Income Tax Appellate
\n        Tribunal     and     to    make     appropriate     urgent
\n        recommendations to the Government of India who
\n        should take remedial steps by an appropriate legislation
\n        to overcome the handicaps and difficulties and make the
\n        tribunals effective and efficient instruments for making
\n        Judicial review efficacious, inexpensive and satisfactory.\u2016\n<\/p><\/blockquote>\n
72.    Suffice would it be to state that the observations of
\nK.Ramaswamy,          J.   in   R.K.Jain’s    case     certainly    struck      a
\ndiscordant note with respect to the view taken in S.P.Sampath
\nKumar’s case (supra) and the observations in para 76 highlight
\njudicial adjudication being a special process efficiency of which
\ncould be best maintained by advocate Judges as also remedy
\nof appeal by Special Leave to the Supreme Court being cost
\nprohibitive     compelling       citizens     from     far-flung   areas        to
\napproach the Supreme Court and hence the desirability of a
\nremedy before a Bench at the respective High Courts.\n<\/p>\n
73.    In Sakinala Hari Nath’s case the Full Bench of the Andhra
\nPradesh     High     Court      declared     Article   323A(2)(d)         of   the
\nConstitution of India as unconstitutional to the extent it
\nempowered Parliament, byelaw, to exclude the jurisdiction of
\nthe High Court under Article 226 of the Constitution of India as
\nalso declared Section 28 of the Administrative Tribunals Act
\n1985, to the extent it divested the High Court of its jurisdiction<\/p>\n
WP(C) 13360\/2009 & connected matters                      Page 57 of 69<\/span>
\n under Article 226 as unconstitutional.               In so declaring as
\naforenoted the Full Bench of the Andhra Pradesh High Court
\nreferred to various decisions which held that Tribunals with
\ntrappings of a court are not courts in the strict sense of
\nexercising judicial power and that Constitutional Courts are the
\nonly guardians to ensure and safeguard the enduring values
\nwhich the Constitution seeks to preserve.              It was held that
\nTribunals may have the authority of law to pronounce upon
\nvaluable rights and may act in a judicial manner, but they
\ncannot be treated as equivalent to ordinary Courts of Civil
\njudicature.\n<\/p>\n
74.    The 7 Judge Constitution Bench decision reported as
\n1997 (3) SCC 261 L.Chandra Kumar Vs. UOI completed the
\njourney, root whereof could be traced to the Full Bench
\ndecision of the Andhra Pradesh High Court in Sakinala Hari
\nNath’s case and the view taken in R.K.Jain’s case.                 3 broad
\nissues, being: whether the power conferred upon Parliament or
\nthe State Legislatures by sub-clause (d) of Clause 2 of Article
\n323A or by sub-clause (d) of Clause 3 of Article 323B of the
\nConstitution, totally exclude the jurisdiction of all Courts,
\nexcept that of the Supreme Court under Article 136 run
\ncounter to the power of judicial review conferred on the High
\nCourts under Article 226 and 227; whether the Tribunals
\nconstituted either under Article 323A or Article 323B of the
\nConstitution possess the competence to test the constitutional
\nvalidity    of   a   statutory     provision\/rule;   and   whether     the
\nTribunals, as they are functioning at present, can be said to be
\neffective substitutes for the High Courts in discharging the
\npower of judicial review.          Considering 26 decisions, most of
\nthem penned and authored by Courts in India and a few
\nWP(C) 13360\/2009 & connected matters                   Page 58 of 69<\/span>
\n abroad, the unanimous verdict was that under the Indian
\nConstitutional Scheme the Supreme Court and the High Courts
\nare the sole repositories of the power of judicial review and
\nthat notwithstanding judicial power being capable of being
\nvested in a Tribunal, the power of judicial review of the High
\nCourt could not be excluded even by a Constitutional
\namendment.         The Supreme Court categorically upheld the
\nunderlying theme of the Full Bench decision of the Andhra
\nPradesh High Court that the power of judicial review is a basic
\nfeature of our Constitution and the aspect of the power of
\njudicial review is vested exclusively in the constitutional courts
\ni.e. the High Court and the Supreme Court. In paras 62, 63,
\n64, 65, 66, 67, 68, 69, 71, 72, 77, 78 and 80, the Constitution
\nBench discussed and analyzed the 5 majority opinions in
\nKeshwananda Bharti’s case and as subsequently applied in
\nIndira Nehru Gandhi’s case, Minerva Mills’ case and R.K.Jain’s
\ncase to bring home the point that the minority view i.e.
\nP.N.Bhagwati, J.’s view in Minerva Mills’ case as reflected by
\nthe 5 Judge Constitution Bench opinion in S.P.Sampath
\nKumar’s case was not the correct view and that the correct
\nlegal position would be that whereas Tribunals can perform a
\nsupplemental        as    opposed      to   a   substitutional    role   by
\nempowering Tribunals with judicial power but the power of
\njudicial review, which is a part of the basic structure of the
\nConstitution, cannot be taken away from the High Courts
\nwhich have the power to exercise judicial superintendence
\nover the decisions of all Courts and Tribunals within their
\nrespective jurisdiction.          In para 91 of the decision, the
\nConstitution Bench affirmatively held that the decisions of
\nTribunals, whether created pursuant to Article 323A or Article<\/p>\n
WP(C) 13360\/2009 & connected matters                   Page 59 of 69<\/span>
\n 323B of the Constitution would be subject to the High Courts
\nwrit jurisdiction under Article 226 and Article 227 of the
\nConstitution.\n<\/p>\n
75.    A words needs to be penned by us with reference to para
\n96 of the decision in L.Chandra Kumar’s case, with reference
\nwhereto      Sh.Atul    Nanda      learned   senior   counsel     for   the
\nrespondents urged that if not qua Article 226 of the
\nConstitution of India, qua Article 227 of the Constitution of
\nIndia, it would be permissible to denude High Court’s
\njurisdiction under said Article.       The observations relied upon
\nread: ’96. It has been brought to our notice that one reason
\nwhy these Tribunals have been functioning inefficiently is
\nbecause there is not authority charge with supervising and
\nfulfilling their administrative requirements. To this end, it is
\nsuggested that the Tribunals be made subject to the
\nsupervisory jurisdiction of the High Courts within whose
\nterritorial jurisdiction they fall. We are, however, of the view
\nthat this may not be the best way of solving the problem. We
\ndo not think that our constitutional scheme requires that all
\nadjudicatory bodies which fall within the territorial jurisdiction
\nof the High Courts should be subject to their supervisory
\njurisdiction’.\n<\/p>\n
76.    Suffice would it be to state that the said observations
\npertain to administrative supervisory jurisdiction of a High
\nCourt over Courts and Tribunals functioning within the territory
\nof the High Court and do not relate to judicial supervisory
\njurisdiction.\n<\/p>\n
77.    In the decision reported as AIR 2007 SC 861 I.R.Coelho
\nVs. State of Tamilnadu, a 9 Judge Bench of the Supreme Court,
\nWP(C) 13360\/2009 & connected matters                  Page 60 of 69<\/span>
\n in its unanimous opinion reiterated that the power of judicial
\nreview is a basic feature of the Constitution and being a
\nconstituent power cannot be abrogated by judicial process or
\ninterpretation (refer para 41).\n<\/p>\n
78.    The latest pronouncement of the Supreme Court reported
\nas 2010 (5) SCALE 514 UOI Vs. R.Gandhi has very succinctly, in
\npara 12 and 13 brought out the difference in the powers
\nexercised by Courts and Tribunals and briefly stated reiterates
\nthe view that the sovereign power of the State to administer
\njustice and in particular the power exercised by superior courts
\nof that of judicial review can never be entrusted to Tribunals.\n<\/p>\n
79.    Another illuminating decision tracing the historical source
\nof power of supervisory jurisdiction by superior courts in India
\nis the decision reported as 2003 (6) SCC 675 Suryadev Rai Vs.
\nRam Chandra Rai & Ors.                 Dealing with the amendment to
\nSection 115 CPC by Act No.46 of 1999 and its impact on the
\njurisdiction of the High Court under Article 226 and Article 227
\nof the Constitution of India, the Supreme Court held that the
\npower of the superior court to issue a writ of error was
\nhistorically treated as the inherent power of superior courts in
\ncommon law countries. In para 29 of the decision it was held
\nas under:-\n<\/p>\n
        \u201529.      The Constitution Bench in L.Chandra
\n        Kumar v. Union of India<\/a> dealt with the nature of
\n        power of judicial review conferred by Article 226 of
\n        the    Constitution     and     the    power      of
\n        superintendence conferred by Article 227. It was
\n        held that the jurisdiction conferred on the
\n        Supreme Court under Article 32 of the Constitution
\n        and on the High Courts under Articles 2226 and
\n        227 of the Constitution is a part of the basic
\n        structure of the Constitution, forming its integral
\nWP(C) 13360\/2009 & connected matters                 Page 61 of 69<\/span>
\n         and essential feature, which cannot be tampered
\n        with much less taken away even by constitutional
\n        amendment, not to speak of a parliamentary
\n        legislation.\u2016\n<\/p><\/blockquote>\n
80.    The decision in Suryadev Rai’s case also brings out
\nanother interesting facet of the growth of Jurisprudence with
\nrespect to the power conferred by Article 226 of the
\nConstitution vis-\u00e0-vis the power conferred under Article 227 of
\nthe Constitution of India; and notwithstanding the commonly
\nperceived view that Article 226 of the Constitution of India
\npreserves to the High Court the power to issue writs and thus
\nvis-\u00e0-vis Tribunals, authorities and persons, with respect to
\nwrits of certiorari, the power would be limited, as held by the
\nSupreme Court in the decision reported as AIR 1955 SC 233
\nHarivishnu Kamath Vs. Ahmad Ishaque, to (a) correct errors of
\njurisdiction; (b)      correct illegality in the exercise of its
\nundoubted jurisdiction by the Tribunal; (c) correct such error
\nwhich is a manifest error apparent e.g. when it is based on
\nclear ignorance or disregard of the provision of law or is a
\npatent error as against a wrong; (d) act not as in appellate
\njurisdiction     but     exercise      supervisory   jurisdiction,    one
\nconsequence whereof being the Court will not review findings
\nof facts even if erroneously reached by the Tribunals, power
\nunder Article 227 being supervisory power and in that sense
\nhas width and vigour unprecedented, the distinction between
\nthe two jurisdictions stands almost obliterated. In para 25 it
\nwas so observed and with the justification why it has become
\ncustomary for the lawyers labeling their petitions as one
\ncommon under Article 226 and Article 227 of the Constitution
\nof India.\n<\/p>\n
WP(C) 13360\/2009 & connected matters                  Page 62 of 69<\/span><\/p>\n
 81.    Whereas it can be safely said that proceedings under
\nArticle 226 are in the exercise of the original jurisdiction of the
\nHigh Court, proceedings under Article 227 of the Constitution
\nare not original but supervisory proceedings.\n<\/p>\n
82.    The Jurisprudence on the subject would reveal that the
\nexpression \u2017administration of justice’ is always understood to
\nmean the exercise of judicial power of the State to maintain
\nand uphold rights.          Judicial power means the power which
\nevery sovereign authority must of necessity have, to decide
\ncontroversies between its subject, or between itself and its
\nsubjects.      Though, with the growth of civilization and the
\nproblems of modern life, a large number of administrative
\nTribunals have come into existence and notwithstanding these
\nTribunals act in a judicial manner, but they are not part of the
\nordinary Courts of Civil Judicature. These Tribunals may share
\nthe exercise of the judicial power of the State, but cannot
\nexercise the power of judicial review.       The decision of the
\nSupreme Court reported as 1962 (2) SCR 339 Harinagar Sugar
\nMills Vs. Shyam Sundar Jhunjhunwala brings out the facet of
\nTribunals exercising judicial power but not being courts and
\nhence capable of being entrusted with the judicial power of the
\nState but not the sovereign power of the State of judicial
\nreview, which power is reserved for superior courts.             The
\ndecision reported as 1992 Supp. (2) SCC 651 Kihoto Hollohan
\nVs. Zachillhu & Ors., dealing with what is commonly known as
\nthe anti-defection law, categorically held that even where a
\nstatute gives finality to a decision, the same would not give
\nimmunity to the decision from a judicial review.\n<\/p>\n
WP(C) 13360\/2009 & connected matters             Page 63 of 69<\/span><\/p>\n
 83.    We had promised to discuss the decision of the Supreme
\nCourt in UOI Vs. R.Gandhi (supra).\n<\/p>\n
84.    The Constitution Bench of the Supreme Court was
\nconsidering issues relating to \u2017The National Company Law
\nTribunal’ and \u2017The National Company Law Appellate Tribunal’.
\nIn view of the decision in L.Chandra Kumar’s case (supra), and
\nrecognizing that judicial review by Constitutional Courts was
\nrecognized as a basic feature of the Constitution, in para 12
\nonwards the Court discussed the difference between Courts
\nand Tribunals followed by a discussion in para 17 onwards on
\nthe separation of executive and judicial powers of the State.
\nDiscussing in para 24 onwards, the question: Whether the
\nGovernment can transfer the judicial functions traditionally
\nperformed by Courts to Tribunals? In para 32 it was noted that
\nnotwithstanding the Constitution contemplating judicial power
\nbeing exercised both by Courts and Tribunals held that this
\nmust accept the powers and jurisdictions vested in superior
\ncourts by the Constitution.\n<\/p>\n
85.    Discussing the argument in favour of Tribunals the
\nSupreme Court noted that since Court functions under archaic
\nand elaborate procedural laws and highly technical evidence
\nlaw and with a view to ensure fair play as also avoidance of
\njudicial error, procedural laws provide for appeals, revision and
\nreviews resulting          in frivolous and vexatious preliminary
\nobjections, pushing into background the main issues resulting
\nin the inevitable delays               which lead    to frustration and
\ndissatisfaction      and    hence      a   user   friendly   Tribunal    was
\nwelcomed, but noted that the dependence of Tribunals on the
\nsponsoring      or the parent department for infrastructural<\/p>\n
WP(C) 13360\/2009 & connected matters                     Page 64 of 69<\/span>
\n facilities and or personnel undermines the independence of
\nthe Tribunals and this draw back substantially takes away the
\nglitter from the positive features of tribunalization.                It was
\nnoted that the Leggatt Committee chaired by Sir Andrew
\nLaggatt had submitted a report to the Lord High Chancellor of
\nGreat Britain in March 2001 recommending that if Tribunals
\nhad to be a true successor of ordinary civil courts and not
\nbecome \u2017Bureaucratic Boards’ it would be best served if there
\nadministrative support is provided by the \u2017Lord Chancellor’s
\nDepartment’. This would be, in our opinion the signature tune
\nof the ethos expressed by the Supreme Court in para 45 of the
\ndecision in Lt.Col.Prithipal Singh Bedi’s case (supra) when the
\nSupreme Court observed that the Tribunal it was suggesting
\nshould \u2017Truly be a Judicial Review Forum’.\n<\/p>\n
86.    Even      prior    to    the    Constitution   of   India      being
\npromulgated, superior courts constituted by the Letters Patent
\nCharter in India and other dominions of the Crown used to
\nissue prerogative writs to courts and tribunals subordinate to
\nthe Chartered High Courts save and except where appellate or
\nrevisional remedies were created by statute. The writ of error,
\nas called today by the name of certiorari used to be issued to
\ncourts and tribunals and the origin of the said power to issue
\nprerogative writs could be traced to the theory that the king
\nbeing the paramount judicial authority and the judges being
\nonly the king’s deputies, any exercise of unauthorized
\njurisdiction by the Judges was considered as an usurpation of
\nthe royal prerogative. The August royal personage could not
\nof course tolerate transgression of jurisdictional limits to the
\nincumbents of the office of Judgeship and had therefore to
\nexercise his controlling power over them to keep them within
\nWP(C) 13360\/2009 & connected matters                  Page 65 of 69<\/span>
\n the bounds of their authority.         As it developed, the writ of
\ncertiorari was the process by which the King’s Bench Division
\nin the exercise of its superintending power over inferior
\njurisdictions, requires the Judges or officers of such jurisdiction
\nto certify or send proceedings before them into the King’s
\nBench Division, whether for the purposes of examining into the
\nlegality of such proceedings, or for giving fuller or more
\nsatisfactory effect to them than could be done by the Court
\nbelow.\n<\/p>\n
87.    Recognizing efficacious alternative remedies available
\nand on the principle of comity, prerogative writs were not
\nissued where the error was capable of being rectified at an
\nappellate or a revisional jurisdiction.\n<\/p>\n
88.    We have noted hereinabove that a limited contempt
\njurisdiction has been vested in the Tribunal which does not
\nempower the Tribunal to enforce its decisions under contempt
\njurisdiction.     We note that there is no Section in the Act
\nempowering the Tribunal to execute its orders, though we find
\nthat under Rule 25 of the Armed Forces Tribunal (Procedure)
\nRules 2008 it is stipulated that nothing in the Rules shall be
\ndeemed to limit or otherwise affect the inherent powers of the
\nTribunal to make such orders or give such directions as may
\nbe necessary or expedient to give effect to its orders or to
\nprevent abuse of its process or to secure the ends of justice. It
\nwould be debatable whether Rule 25 recognizes the sui
\ngeneris power of contempt of the Tribunal. If not, it would be
\nan anomaly to hold that the Armed Forces Tribunal is not a
\nTribunal subordinate to the High Court for the reason if held
\notherwise, a High Court would have no power under its<\/p>\n
WP(C) 13360\/2009 & connected matters               Page 66 of 69<\/span>
\n contempt jurisdiction to enforce an order passed by the Armed
\nForces Tribunal, and if the Tribunal would have no power to
\nenforce its order, it would be a strange situation where a party
\nwould be left without a remedy.                       But we refrain from
\nexpanding on this aspect of the matter for the reason learned
\ncounsel for the parties had not addressed any submissions on
\nthis point and thus we simply note a point which does arise for
\nconsideration as it is relevant to the issue at hand and leave it
\nat that.\n<\/p>\n
89.    To summarize, the position would be that the Armed
\nForces Tribunal, being manned by personnel appointed by the
\nExecutive, albeit in consultation with the Chief Justice of India
\ncannot be said to be truly a judicial review forum as a
\nsubstitute to High Courts which are constitutional courts and
\nthe power of judicial review, being a basic feature of the
\nConstitution, under Article 226 and Article 227 of the
\nConstitution of India is unaffected by the Constitution of the
\nArmed Forces Tribunal.                  Further, Article 227(4) of the
\nConstitution of India takes away only the administrative
\nsupervisory jurisdiction of High Court over the Armed Forces
\nTribunal     and    does     not       impact   the    judicial   supervisory
\njurisdiction over the Armed Forces Tribunal. Thus, decisions by
\nthe Armed Forces Tribunal would be amenable to judicial
\nreview by High Court under Article 226 as also Article 227 of
\nthe Constitution of India.\n<\/p>\n
90.    We may note that the view which we have taken finds a
\nprecedent in a Division Bench decision of the Kerala High Court
\nreported as 2010 (4) KLT 611 Joby Varghese Vs. Armed Forces
\nTribunal.\n<\/p>\n
WP(C) 13360\/2009 & connected matters                       Page 67 of 69<\/span><\/p>\n
 91.    The preliminary question pertaining to the maintainability
\nof the writ petitions is accordingly answered in favour of the
\npetitioners and it is held that the above captioned writ
\npetitions against the decisions\/orders passed by the Armed
\nForces Tribunal are maintainable.\n<\/p>\n
92.    W.P.(C) No.3441\/2010 Ex.Hav.Maharam Vs.UOI & Ors.,
\nW.P.(C) No.2667\/2010 Col.Sanjay Kumar Vs. UOI & Ors.,
\nW.P.(C) No.5794\/2010 Hav.Reiji Kumar Vs. UOI & Ors., W.P.(C)
\nNo.654\/2010 Lt.Col.Harpreet Singh Vs. UOI & Ors., W.P.(C)
\nNo.273\/2010 Risaldar Nabab Singh Vs. UOI & Ors., W.P.(C)
\nNo.5189\/2010 Naik Prabhu Dayal Sharma Vs. UOI & Ors.,
\nW.P.(C) No.4926\/2010 Ex.Sep.Inder Singh Vs. UOI & Ors.,
\nW.P.(C) No.4699\/2010 Rameswar Prashad Sharma Vs. UOI &
\nOrs., W.P.(C) No.4887\/2010 Smt.Surjeet Kaur Vs. UOI & Ors.,
\nW.P.(C) No.4669\/2010 Ex.Sigmn Ganga Ram Sharma Vs. UOI &
\nOrs., W.P.(C) No.4524\/2010 Sub.Maj.Kiran Pal Singh Vs. UOI &
\nOrs., W.P.(C) No.4417\/2010 Lt.Cdr.G.S.Beniwal Vs. UOI & Ors.,
\nW.P.(C) No.3841\/2010 Ex.Sep.Ram Swarup Vs. UOI & Ors.,
\nW.P.(C) No.3836\/2010 Indra Singh Solanki Vs. UOI & Ors. and
\nW.P.(C) No.5206\/2010 Ex.Sep.Rai Singh Vs. UOI & Ors. are
\ndirected to be listed for preliminary hearing on 29.4.2011.\n<\/p>\n
93.    W.P.(C) No.6066\/2010 Ex.Maj.Bhagwan Singh Vs.UOI &
\nOrs., W.P.(C) No.6183\/2010 Ex.Brig.R.P.Singh Vs. UOI & Ors.,
\nW.P.(C) No.7018\/2010 G.D.Banarasi Lal Vs. UOI & Ors., W.P.(C)
\nNo.7040\/2010 Ex.Capt.Sewa Ram Nigial Vs. UOI & Anr. and
\nW.P.(C) No.6061\/2010 Ex.Maj.Gen.P.S.K.Chaudhary Vs. UOI &
\nOrs. shall be listed for preliminary hearing on 4.7.2011.\n<\/p>\n
94.    W.P.(C) No.4652\/2010 GNR.B.N.Khente Vs. UOI & Ors.,
\nW.P.(C) No.5090\/2010 Ex.Col.Harvinder Singh Kohli Vs. UOI &
\nWP(C) 13360\/2009 & connected matters            Page 68 of 69<\/span>
\n Ors., W.P.(C) No.5156\/2010 Naib Sub.Vijay Bahadur Singh Vs.
\nUOI & Ors., W.P.(C) No.3828\/2010 Ex.Gnr.Naresh Kumar Vs.
\nUOI & Ors. and W.P.(C) No.3578\/2010 Brig.V.S.Sukhdial Vs. UOI
\n& Ors. shall be listed for preliminary hearing on 5.7.2011.\n<\/p>\n
95.    W.P.(C) No.5764\/2010 Lt.Col.Rajeev Bhatt Vs. Chief of
\nArmy Staff & Ors., W.P.(C) No.1918\/2010 Om Prakash Vs. UOI
\n& Ors., W.P.(C) No.3439\/2010 Lt.Cdr.Narvir Singh Vs. Union of
\nIndia & Ors., W.P.(C) No.3086\/2010 Wing.Cdr.S.Yadav Vs.
\nUnion      of    India     &    Ors.   and   W.P.(C)      No.3405\/2010
\nSqnLdr.Dr.Usha Atri Vs. Union of India & Ors. shall be listed for
\npreliminary hearing on 6.7.2011.\n<\/p>\n
96.    W.P.(C) No.7039\/2010 Gunner Milkhi Ram Vs. Union of
\nIndia & Ors., W.P.(C) No.7041\/2010 Gunner Sat Pal Vs. Union of
\nIndia & Ors., W.P.(C) No.7042\/2010 Gunner Hari Singh Vs.
\nUnion      of    India     &    Ors.   and   W.P.(C)      No.8298\/2010
\nEx.Sep.Bhagwan Singh Vs. Union of India & Anr. shall be listed
\nfor preliminary hearing on 7.7.2011.\n<\/p>\n
97.    W.P.(C) No.13360\/2009 Col.A.D.Nargolkar Vs. Union of
\nIndia & Ors. and W.P.(C) No.13367\/2009 Col.A.D.Nargolkar Vs.
\nUnion of India & Ors. shall be listed for preliminary hearing on
\n8.7.2011.\n<\/p>\n
                                         (PRADEEP NANDRAJOG)
\n                                                JUDGE<\/p>\n
                                             (SURESH KAIT)
\n                                                  JUDGE
\nAPRIL 26, 2011
\ndk\/mm
\nWP(C) 13360\/2009 & connected matters                   Page 69 of 69<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Colonel A.D.Nargolkar vs Union Of India & Ors. on 26 April, 2011 Author: Pradeep Nandrajog $~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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-125947","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nColonel A.D.Nargolkar vs Union Of India & Ors. on 26 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/colonel-a-d-nargolkar-vs-union-of-india-ors-on-26-april-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Colonel A.D.Nargolkar vs Union Of India & Ors. on 26 April, 2011 - 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