Article 226 Writs Maintainable Against AFT Orders: Supreme Court Clarifies Jurisdiction

The Supreme Court, in Union of India & Ors. vs Parashotam Dass and connected matters, has conclusively addressed a long-pending constitutional question: Can orders passed by the Armed Forces Tribunal (AFT) be challenged before High Courts under Article 226 of the Constitution?

Through an extensive analysis of prior Constitution Bench decisions and the scheme of the Armed Forces Tribunal Act, 2007, the Court has reaffirmed that writ jurisdiction under Article 226 remains available against AFT orders, and that any absolute bar on such jurisdiction would be unconstitutional.

Background: Why the Armed Forces Tribunal Was Created

Legislative Context and Judicial Prodding

The Armed Forces Tribunal Act, 2007 was enacted against the backdrop of:

  • A burgeoning number of pending service disputes involving members of the Army, Navy and Air Force.
  • Persistent concerns over delay and the lack of a specialised judicial forum for defence personnel.

Key milestones that triggered the legislative initiative included:

  • The decision in Lt. Col. Prithi Pal Singh Bedi vs Union of India & Others (1982) 3 SCC 140, where the Supreme Court urged the Central Government to ensure at least one effective judicial review mechanism in armed forces service matters.
  • The 19th Report of the Estimates Committee of Parliament (1992), which also recommended the creation of a dedicated tribunal for armed forces service issues.

Prior to the 2007 Act, grievance redress was largely administrative:

  • Statutory complaints in service matters.
  • Pre- and post-confirmation petitions against findings and sentences of courts-martial, decided by various authorities in the chain of command.

To strengthen confidence within the armed forces and provide a judicial appellate mechanism, Parliament enacted the Armed Forces Tribunal Act, 2007 (the “said Act”), which came into force on 15.06.2008, with later amendments.

Once the said Act became operational, a significant jurisdictional dispute emerged:

Whether orders of the Armed Forces Tribunal can be subjected to judicial review by High Courts under Article 226 of the Constitution of India?

This issue had arisen repeatedly in various High Courts and before the Supreme Court, particularly in light of earlier observations in Union of India & Ors. v. Major General Shri Kant Sharma & Anr. (2015) 6 SCC 773, which had been read as imposing a virtual bar on High Court interference with AFT decisions.

In some pending cases, including the lead matter, objections regarding the High Court’s power under Article 226 had not even been raised before the High Court, but were subsequently agitated before the Supreme Court.

Arguments on Behalf of Serving and Former Defence Personnel

Fundamental Nature of Article 226 Judicial Review

Senior counsel representing private parties strongly argued that:

  • Judicial review under Article 226 forms part of the basic structure of the Constitution, as held in the Constitution Bench judgment in L. Chandra Kumar v. Union of India & Others (1997) 3 SCC 261.
  • Therefore, no statute and no judicial precedent can completely oust the writ jurisdiction of the High Courts over tribunal decisions.

Reliance was placed on:

  • The analysis in L. Chandra Kumar, which, drawing from Kesavananda Bharti v. State of Kerala AIR 1973 SC 1461 and other decisions, held that:
    • Judicial review by High Courts and the Supreme Court is a basic feature of the Constitution.
    • Decisions of tribunals constituted under Article 323A and Article 323B remain subject to scrutiny under Article 226.

Lack of Effective Alternative Remedy

Counsel contended that excluding judicial review by High Courts would be impermissible because:

  1. Article 136(2) expressly prohibits the Supreme Court from entertaining Special Leave Petitions directly against decisions of courts or tribunals constituted under any law relating to the Armed Forces.

  2. Section 31 of the Armed Forces Tribunal Act allows an appeal to the Supreme Court only if:

    • The AFT itself grants leave, and
    • The matter involves a “point of law of general public importance”, or appears to the Supreme Court to be a point fit for consideration.

As most service disputes are personal and individual in nature—promotion, pension, tenure, disciplinary orders, etc.—they seldom raise such broad questions of public importance. Consequently:

In the absence of Article 226 review, an assessee in service would effectively be left without any meaningful appellate remedy against AFT orders.

Text of Section 14 and Distinction Between Articles 226 and 227

Counsel highlighted that Parliament itself recognised the importance of High Court jurisdiction when drafting Section 14(1) of the said Act, which confers jurisdiction on the AFT:

“Save as otherwise expressly provided in this Act, the Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority, exercisable immediately before that day by all courts (except the Supreme Court or a High Court exercising jurisdiction under articles 226 and 227 of the Constitution) in relation to all service matters.”

This language was read as a conscious legislative saving of the High Court’s writ powers.