Supreme Court overrules 2015 judgment which held High Courts cannot entertain Article 226 petitions against Armed Forces Tribunal orders

The Supreme Court on Tuesday overruled its 2015 decision in Union of India v. Major General Shri Kant Sharma which had held that High Courts do not have the power to entertain petitions under Article 226 challenging orders of the Armed Forces Tribunal (AFT) under writ jurisdiction [Union of India v Parashotam Dass]..A three-judge Bench of Justices SK Kaul, AS Oka and BV Nagarathna said that the decision was in conflict with earlier Constitution bench judgments and also said that preventing High Courts from correcting possible errors by the AFT would be against the constitutional scheme. "We have, thus, no hesitation in concluding that the judgment in Major General Shri Kant Sharma & Anr.case does not lay down the correct law and is in conflict with judgments of the Constitution Benches rendered prior and later to it, including in L. Chandra Kumar case, S.N. Mukherjee case, and Rojer Mathew case making it abundantly clear that there is no per se restriction on the exercise of power under Article 226 of the Constitution by the High Court," the Court held.The Court said that judicial scrutiny by High Court under Article 226 should not be considered an appeal. "The first independent judicial scrutiny is only by the Armed Forces Tribunal. To say that in some matters, a judicial scrutiny would amount to a second appeal, would not be the correct way to look at it. What should be kept in mind is that in administrative jurisprudence, at least two independent judicial scrutinies should not be denied, in our view," the top court said..The bench further said that a High Court judge has immense experience and are quite conscious of the scope and nature of their jurisdiction which depend on the nature of the matter."We believe that the High Courts are quite conscious of the parameters within which the jurisdiction is to be exercised, and those principles, in turn, are also already enunciated by this Court.".The judgment in the case of Major General Shri Kant Sharma had said that "if the High Court entertains a petition under Article 226 of the Constitution of India against order passed by Armed Forces Tribunal under Section 14 or Section 15 of the Act bypassing the machinery of statute i.e. Sections 30 and 31 of the Act, there is likelihood of anomalous situation for the aggrieved person in praying for relief from this Court."As per the AFT Act, appeals against the decision of the tribunal lies directly to the Supreme Court but restricted to points of law of general public importance.The Supreme Court in the 2015 judgment had said that that when a statutory forum (Supreme Court) is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. That judgment was passed by Justices SJ Mukhopadhaya and NV Ramana.This judgment had greatly impacted the military personnel who had to move the top court if the AFT made any obvious error..Persons serving in different armed forces argued before the top court that there could never be a bar to the exercise of writ jurisdiction by a High Court, albeit sometimes, a High Court could use its discretion not to exercise the jurisdiction. It was argued that the 2015 decision was against the well-settled principle of law and established judicial precedents since that judgment sought to create a complete bar to the High Court’s power to review decisions arising from the AFT. .The government, on the other hand, submitted that even if High Courts have jurisdiction, the same ought to be restricted.The submission was that all disciplinary cases, including court-martials, which may require another examination of evidence be kept out of the High Court’s jurisdiction. .The apex court, however, refused to carve out any exceptions including the ones enumerated by the Central government. "Irrespective of the nature of the matter, if there is a denial of a fundamental right under Part III of the Constitution or there is a jurisdictional error or error apparent on the face of the record, the High Court can exercise its jurisdiction," the judgment explained. The Court further said that for appeals to lie to the Supreme Court, a point of law of 'general public importance' should be involved.However, most matters in AFT are cases personal to litigants being in the nature of service matters, and may not involve a point of law of 'general public importance'.Hence, in many such cases if the jurisdiction of High Courts is taken away, the litigants will be left with no remedy against an AFT order."How can courts countenance a scenario where even in the aforesaid position, a party is left remediless? It would neither be legal nor appropriate for this Court to say something to the contrary or restrict the aforesaid observation enunciated in the Constitution Bench judgment in S.N. Mukherjee case," the Supreme Court said..Therefore, the court held that the judgment in Major General Shri Kant Sharma did not lay down the correct law and was in conflict with judgments of the Constitution Benches rendered prior and later to it. Senior Advocate Arvind Datar and advocates Navdeep Singh and K Parameshwar appeared for the petitioners..[Read Judgment]