Datar in “AFT to High Court” roadblock as Supreme Court moots reconsideration of Shri Kant Sharma
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Datar in “AFT to High Court” roadblock as Supreme Court moots reconsideration of Shri Kant Sharma

Murali Krishnan

Is the Supreme Court judgment in Union of India v. Major General Shri Kant Sharma which disrobed High Courts of its Article 226 jurisdiction with respect to orders from Armed Forces Tribunal (AFT) fallacious?

The Supreme Court will consider precisely this issue as a Division Bench of Justices Ranjan Gogoi and NV Ramana today issued notice to the Central government in a batch of appeals filed against orders of High Courts refusing to entertain appeals against decisions of AFT.

The High Courts had dismissed petitions of disabled soldiers and military widows and retired soldiers as the Supreme Court had ruled that High Courts cannot entertain appeals from AFT since Section 30 of the AFT Act provides for a remedy by way of appeal to the Supreme Court.

Senior Advocate Arvind Datar along with advocate Aishwarya Bhati appeared for the petitioners.

Datar submitted that the judgment of the Supreme Court had, effectively, left litigants remediless against orders of the AFT because of the statutory bar of “general public importance” for approaching the Supreme Court. He submitted that there was no vested right of appeal against AFT orders and the way out for High Courts is to entertain writ petitions since the Constitutional power of High Courts is preserved under Section 14 of the Act and fundamental rights of military community could not be diminished vis-a-vis civilians.

He also contended that a similar controversy pertaining to the Central Administrative Tribunal had been addressed by a seven-judge Bench of the Supreme Court when it was ruled that the Supreme Court could not become the first appellate court for such service matters and that challenges to Tribunal decisions could be heard by Division Benches of High Courts. It was also submitted that it was a known legal proposition that all Tribunals being mere creations of the statute were subordinate to the writ jurisdiction of Constitutional High Courts.

There was a general dissatisfaction among the military community after the Supreme Court judgment since obtaining legal remedy from the Supreme Court involves monetary and geographical constraints. Moreover, Section 31 of the AFT Act provides that appeals cannot be filed before the Supreme Court unless the case involves a “point of law of general public importance” and the Supreme Court has also held that issues such as pension, promotions, pay scales etc. do not fall in the category of “public importance”.

This had greatly limited the scope of appeal making AFT virtually the final court in Armed Forces cases.

Read the order below. 

Image via Deccan Chronicle.

AFT-HC-jurisdiction-order.pdf
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