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Wednesday, March 11, 2015

By way of a decision of the Supreme Court rendered today, the right to effective Justice curtailed for defence personnel, veterans and families

It is indeed a dark day for litigation related to defence personnel, defence veterans and their families.

The Supreme Court has rendered a decision today which effectively ensures that the Armed Forces Tribunal (AFT) becomes the first and the last forum for litigants, thereby placing them at a much lower pedestal than other citizens of the country.

By way of the ibid decision, it has been held that orders of the AFT cannot be challenged by affected parties before the High Courts, as was being done till today, and the only remedy to challenge the same is before the Supreme Court by way of an appeal as provided in Sections 30 and 31 of the Armed Forces Tribunal Act, 2007. What however is bound to hit litigants as a rock is the fact that there is no vested right of appeal to the Supreme Court conferred by the above sections and an appeal can only be filed by the leave of the Tribunal in case a “point of law of general public importance” is involved or if it appears to the Supreme Court that the point is such that it needs to be considered by the highest Court of the land. The fact that there is no vested right of appeal has already been solidified by the Supreme Court in yet another decision (Brig PS Gill’s case) and the fact that issues such as pension are not matters involving ‘point of law of general pubic importance’ has also been judicially determined in a recent case (ML George’s case). Of course, most of the issues before the AFT are not of general public importance but matters personal to litigants, which means, that such matters are barred by the statute itself to be taken to the Supreme Court in appeal and hence the AFT becomes the only Court for military litigants effectively closing the right of judicial review. It is yet another story that Sections 30 and 31 of the Act have been plagiarized from the appellate provisions provided for the House of Lords (Now the Supreme Court of the United Kingdom) and have no parallel in Indian jurisprudence as we know it.

The Supreme Court, in its decision today, has also stated that High Courts shall not entertain matters when an effective alternative remedy is available within the statute [Para 34 (iv)], but then, as the above would demonstrate, and also tacitly held by the Supreme Court earlier, that there is no effective remedy available at all since the same is fettered by discretion and also subject to the leave of the Tribunal.

The Supreme Court has cited judgements such as Cicily’s case dealing with other statutes like the Consumer Protection Act. This issue however already stands discussed in PS Gill’s case wherein the Supreme Court had held that while the Consumer Protection Act provided for a vested right of appeal, the Armed Forces Tribunal Act did not. Moreover, in law such as consumer or tax, the litigant has a multi-layered remedy of reviews and appeals. To take an example, in consumer cases, the consumer can first approach the District Forum, then the State Commission followed by the National Commission and then the Supreme Court, as a matter of right. However, in case of the AFT, the litigant starts and finishes with the AFT unless there is a question of general public importance involved. Also, while consumer law deals with consumer disputes mostly between private parties, in case of the AFT the disputes are between an individual and the Government and are determined by a quasi-judicial tribunal functioning under the aegis of the opposite party (The Ministry of Defence) and involve valuable fundamental rights. Even the Members of the AFT are selected by a selection committee which has two career bureaucrats on it, including the Defence Secretary, who is the first opposite party in all litigation before the AFT. To be fair, it wouldn’t be in the fitness of things to opine that the functioning of the AFT has not been up to mark. The AFT has duly brought succour to the defence community by some of its decisions, but then, the performance has not been uniform or even, and as in every democracy, a multi-layered system of appeals and/or judicial review is a legitimate expectation of every citizen when he or she is not satisfied with the verdict rendered by a forum. The situation would have been different had there been an Appellate Tribunal and then a vested right of appeal to the Supreme Court, but that is not the case. Layers cannot and should not be eliminated on the pretext of early dispensation of justice but at the cost of valuable rights and remedies of citizens.

The Supreme Court, in its decision, has also relied upon Article 227(4) of the Constitution, which prohibits the superintendence of High Courts over Courts or tribunals constituted by or under any law related to the Armed Forces. However the words ‘courts and tribunals’ occurring in Article 227(4), which is a part of the Constitution, refer and relate only to courts-martial as becomes clear from Chapter 10 of the Constituent Assembly debates and not to any tribunal such as the AFT which itself was born by way of a Parliamentary Act in the year 2007 many decades after the inception of Article 227(4). Moreover, judicial review under Article 226 still remains unaffected even if hypothetically the bar of Article 227(4) is taken into consideration. Even Section 14 of the Armed Forces Tribunal Act, 2007, itself preserves Articles 226 and 227 of the Constitution of India. The writ jurisdiction under Article 226 is not a remedy of interference but ensures that authorities, including Tribunals, remain within their bounds. The system of judicial review by the High Courts also reduces the scope of recklessness by quasi-judicial bodies since they remain alive to the fact that they are amenable to the writ jurisdiction of the High Courts. 

The Supreme Court has also referred to restriction of fundamental rights of members of the Armed Forces under Article 33 of the Constitution. But the question arises whether the basic human right to judicial remedy can be curtailed? Also, the restriction only applies to members of the Armed Forces and not to retired personnel or to their families, who form the bulk of military litigants. The same restriction in the same Article also applies to paramilitary and the police, have they also been burdened with curtailment of judicial remedy? Obviously not!

The net result of the decision rendered by the Supreme Court today, is the following:

A. That the AFT becomes the first and the last court for defence personnel, retired personnel and their families, unless there is a point of law of general public importance involved. The Supreme Court has already made it clear in other cases that there is no vested right of appeal and matters such as pension do not fall within the realm of ‘point of law of general public importance’. The AFT would also now continue deciding issues involving “points of law” which had recently been prohibited for tribunals by a Constitutional Bench decision of the Supreme Court in the Madras Bar Association case pertaining to the National Tax Tribunal.

B. That there shall now be no efficacious remedy against AFT orders which shall also lead to practical problems. For example if a widow or a disabled soldier sitting in Kerala or Bengal or Assam or Gujarat is dissatisfied with an order of the AFT, he or she would first have to apply for a leave to appeal to the AFT, then engage a lawyer in Delhi for his/her case before the Supreme Court.

C. The litigation that was till now being adjudicated by independent Constitutional Courts would now be determined by a quasi-judicial departmental Tribunal which is not even vested with the powers of Civil Contempt and which has the Ministry of Defence as its parent administrative Ministry, without any vested right of further appeal.

D. The Government with its battery of lawyers in the Supreme Court would continue filing en masse appeals against orders that are favourable to litigants while litigants would not be able to afford litigation at the Apex Court at all.

E. The Supreme Court, which was meant to adjudicate matters of great importance and Constitutional issues, would now open its floodgates for innocuous litigation arising out of quasi-judicial Tribunals, for which even practically it does not have time and space, as opposed to the High Courts which are still able to provide hearings at length.

F.  Defence personnel, veterans and their families become even lesser citizens than what they already were. Justice would neither remain affordable, nor accessible. 

G.   Years and years after independence, the system succeeded in eliminating the eye of our fiercely independent High Courts upon the establishment’s opaque functioning by legislating the fractured Armed Forces Tribunal Act, 2007. The inception of AFT hence did not ultimately prove to be a boon, but a restrain on judicial rights. 

The effects of the decision are deleterious and far-reaching and it is only hoped that other similar pending matters are referred to a larger Bench of the Supreme Court and the situation corrected.



Very Sad day indeed for the serving defence personnel and the veterans. I always was under the impression that the only saviour of the service people were the Indian courts and the judicial system.
Is there a way this judgement can be challenged in a larger bench? on the same lines that you have suggested?

Anonymous said...


Col.JPS.Shergill said...

This unfortunate order of the Supreme Court renders the Defence Personnel as second class citizens..Further more the orders of the AFT do not invite contempt and may not therefore be implemented by Goverment and its agencies.Defence personnel have then no where to go,and have no remedy to mitigate injustice to them. These matters should be taken up in a PIL in the Supreme Court as well as in the media to initiate a national debate.

Raghu said...

Fighting the case at SC is a costly affair, not usually affordable by an individual, while union of India continues to file appeals.... Thereby mitigating the benefits of having AFT. So empowering AFT as final court in Armed Forces matters is OK.... The AFT may then decide if the right to appeal is given or not on case to case basis...

Alok Asthana said...

Despite this, there are many who would join the army. Clearly, there is an employment problem here such that men would do anything for money.

Lt Col G K Mohan Rao said...

RDOA IESM & Sanjha Morcha like organisations should ponder over it seriously and initiae action to give teeth for AF Tribunals and also put them under control of legal ministry rather than MOD and also provision for appeal in High Courts. I think it is the right time now to take the issue seriously

Tukaram V Manerajurikar said...

Most of the decisions of AFTs are in favour of litigants i.e. Veterans. Question of Law for appealing in SC applies to Govt. Department already. Hence GOI will have to file appeal in SC. MOD does it regularly. Hence AFT should be under Law Ministry and not MOD.

Brig PS Gill (Retd) said...

This is a most unfortunate development. While the Government has an almost vested right to appeal, because it can still file an SLP against the denial of permission by the AFT, the same is denied to the litigant? This is totally against the fundamental rights of an individual.This Order will literally kill litigants considering the time and money it takes to fight cases in the SC.The AFT presently are powerless since they have no contempt powers and hence most of their orders are not implemented by the Govt.So actually there is no mitigation of having the AFT. Being a part of the MOD, the AFT cannot be said to be totally free from influence/interference. I feel a larger Bench of the SC will be required to Right this Wrong....


Is this also a smart move by the vested interests, on a long term plan?As somebody said above, service personnel are now downgraded further and a second/third class citizens. you never know what is next such big thing in line...may be voting rights of serving/veterans, on SOME TRIVIAL BOGUS REASONS.

Harkirat Ghuman said...

Unfortunate. As Maj Navdeep has pointed out, now AFT becomes the trial and appellate court. Hope Supreme Court reviews this decision.

Harkirat Ghuman said...

Unfortunate. As Maj Navdeep has pointed out, now AFT becomes the trial and appellate court. Hope Supreme Court reviews this decision.

Anonymous said...

Friends, We always seem to blame the bureaucrats. The fact is that the drafting of the AFT Act was done by the JAG It was observed by no less than HMJ Gita Mittal of the Delhi High Court that it is a very poorly drafted Act. In Section 30 while giving unbridled power to appeal against the judgment of the AFT -using the words like "shall have right to appeal against the judgment of the AFT" - took away this right to appeal by making it "subject to the provisions of Section 31"!
What kind of drafting is this. While using words like "shall have" you are taking away that right by making it "subject to the provisions of Section 31". Thus Section 30 became superfluous.

Then about the power of contempt. I talked to the draftsman of the Act who very proudly got up to say he had drafted the Act in the Division Bench headed by HMJ Gita, only to get a flak from the Hon'ble Judge "is this the way you draft an Act of Parliament". The officer replied to me qua my query of not providing for contempt of the court; replied he was forced to remove it.

Now the bill regarding giving contempt of court power to the AFT being number XXXII of 2012 was introduced in the Rajya Sabha on 25 June 2012 by the them Defence Minister AK Anthony. It has not yet been notified perhaps. Will check on the fate.

By the way HMJ UU Lalit of the Supreme Court was Amicus Curie in the matter relating to the powers of the HC under Article 226 before the Division Bench headed by HMJ Gita Mittal. He was of the view that HC did have jurisdiction under Article 226 but did not have power of Superintendence under Article 227 as Article 227(4) barred it.

I don't subscribe to the view that AFT is not a Tribunal under 227(4) and that only Court Martials fall under 227(4).

When the Constitution was being drafted Tribunals of this kind were not envisaged. But AFT is a tribunal created for and relating to the Armed Forces and barred under Article 227(4) from High Court supervision. MG Kapoor, Advocate

Bharat said...

Why can't this decision of the Supreme Court be reviewed ? I am sure there is a way out.
It is up to the legal luminaries to look for a solution.
Can the Parliament be influenced to enact a legislation that can bring about parity between Armed Forces personnel and others ?

ukab99 said...

Now, what happens to those whose cases have been admitted in the High Court under Art 226( Delhi High Court in particular) & are under consideration by the said High Court?

Synapse said...

Since now that the AFT has become the first and the last court for defence personnel, does it anyway also imply that it's decision would now become binding for implementation, which I guess were not so till now?

Col. Avinash K Sharma (Retd) said...

Thanx for posting Maj Navdeep. I wanted to read full judgement of SC. Would you please provide case details so that one can download the judgement.

Anonymous said...

Wg Cdr Sundaresan Sir
Nobody from outside is the enemy for the armed forces personnel except themselves
every body who has got the chance and power trying to degrade other cadre
THE WHOLE defence personnels behind Doctors and the doctors of AMC behind MNS .....going on
one fine DAY the COMPLETE FORCES will be degraded to that extent which cannot be repaired at ALL.GENTLEMEN Qualities??????
Why can't U all treat the other cadre with COURTESY.

Govind Kandari said...

We are thankful to all the team member's winning effort for fighting till the end and finally achieving the Goal. Three Cheers....Hip..Hip......

Sub Jai Chand said...

I fully agree with the points put up by Maj Navdeep Singh and I stand by the Defence personnels who are ones most affected by this woeful decision. I hope this matter will be resolved soon by a larger bench of SC and the justice prevails.As AFT is a part of MOD,it is not free from the influence or interference,futhermore it would be very difficult for the serving defence personnels and veterans to appeal in the SC.I strongly condemn this downcast decision by SC and hope it is challenged in a larger bench.

Anonymous said...

Unfortunately, the armed forces personnel are slowly getting reduced to the third rate citizens. The last hope of justice from judiciary is almost extinct. It will have far reaching ramifications on the morale of solders.