The decision by the apex court effectively ensures that the Armed Forces Tribunal or AFT becomes the first and the last forum for litigants. This also means defense personnel, veterans and their families will not have a multi-layered remedy of reviews and appeals that is available for other citizens
It is indeed a dark day for litigation related to defence personnel, defence veterans and their families.
The Supreme Court has rendered a decision Wednesday, 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. 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 there are matters personal to litigants, which means that such matters are barred by the statute itself from being taken to the Supreme Court, in appeal. 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 UK) and have no parallel in Indian jurisprudence as we know it.
The Supreme Court, in its decision, 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 apex 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 would not 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 defense 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, 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, and then engage a lawyer in Delhi for 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. This was done by the legislation of 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.
(
Major Navdeep Singh is a practicing Advocate in the Punjab & Haryana High Court and the Armed Forces Tribunal. He was also the founding President of the Armed Forces Tribunal Bar Association. He is a Member of the International Society for Military Law and the Law of War at Brussels)
Is there no way out?
Something is disturbing. Over enthusiasm for Cricket and less debate on very fundamental really important judicial process for helping common man like retired defense person. Adds insult to injury to a person who offered his life to save the nation and its constitution, under which the SC exists.
Effectively some of the Delhi babudom seems determined to put Navdeep Singh and others work and the current govt's resolve & on Defense personnel matters to waste
The mechanism used to address Defence matters has to change