Mahesh Chand Ex-Lnk/Ci vs Union Of India And 4 Others
2014 Latest Caselaw 3320 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 
			
 
Case :- WRIT - A No. - 13628 of 2014
 

 
Petitioner :- Mahesh Chand Ex-Lnk/CI
 
Respondents :- Union of India and 4 Others
 
Counsel for Petitioner :- Birendra Pratap Singh
 
Counsel for Respondents :- A.S.G.I., R.B. Singhal, Satish Kumar Rai, 					       Aditya Bhushan Singhal
 

 
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud, Chief Justice
 
Hon'ble Dilip Gupta, J.

Hon'ble B. Amit Sthalekar, J.

(By Hon'ble Dr D Y Chandrachud, C J)

The Reference

A final order of the Armed Forces Tribunal at its Lucknow Bench has been challenged in this petition under Article 226 of the Constitution. A preliminary objection was raised before the Division Bench to the maintainability of the petition founded on a judgment of a Division Bench of this Court in Surendra Bahadur Singh Vs. Armed Forces Tribunal, Regional Bench, Lucknow & Ors.1 that (i) no writ would lie before the High Court against a final order of the Armed Forces Tribunal, since an appeal lies to the Supreme Court under Section 31 (1) of the Armed Forces Tribunal Act, 2007; and (ii) since a statutory remedy of an appeal under Sections 30 and 31 is available against a final order of the Tribunal made in exercise of powers under Section 14, this Court ought not to entertain the petition. The Division Bench found itself unable to agree with the earlier decision in Surendra Bahadur Singh (supra).

The following questions have been referred for consideration of a larger Bench2:

"(a) Whether the jurisdiction of the High Court to entertain a writ petition under Article 226 of the Constitution of India against the final order of the Tribunal made under Section 14 can be said to have been taken away by any stretch of interpretation of the statutory provisions of the Armed Forces Tribunal Act, 2007. The necessary corollary being that can an act of Parliament whittle down any of the constitutional remedies made available under Article 226 of the Constitution of India, which is one of the basic features of the Constitution of India as laid down in the case of L. Chandra Kumar Vs Union of India.

(b) Whether the remedy of judicial review under Article 226 of the Constitution of India can be denied by the High Court to a litigant on the ground that he has a statutory remedy available before the Apex Court by way of an appeal under Section 30/31 of AFT Act, 2007, thereby he loses his constitutional right of judicial review, under Article 226 of the Constitution of India specially in the circumstance when the order of the High Court under Article 226 of the Constitution of India itself can be subjected to challenge before the Apex Court by way of Special Leave to Appeal under Article 136 of the Constitution of India.

(c) Whether the High Court may refuse to entertain a writ petition under Article 226 of the Constitution of India, because of availability of statutory alternative remedy only in cases where after exhaustion of such statutory remedy his right to seek judicial review under Article 226 of the Constitution of India is not lost."

In Surendra Bahadur Singh (supra), the conclusion which was arrived at by the Division Bench was as follows:

"Conclusion

43. On the aforesaid discussion, we are of the view that the AFT Act, 2007 does not take away or violate the right of judicial review under Art. 226/227 and Art.32 of the Constitution of India. The writ petitions under Art. 226 of the Constitution of India would be maintainable, where:-

(a) it pertains to challenge against the constitutional validity of any of the provisions of the AFT Act, 2007;

(b) in the matters relating to armed forces excepted from the jurisdiction of the AFT under Section 3 (o) of the AFT Act, 2007;

(c) in the matters of interlocutory orders passed by the AFT;

However, no writ will lie in the High Court:-

(a) in contempt matters, where statutory appeal is provided to the Supreme Court under Section 30 (2) of AFT Act, 2007;

(b) against final orders of the AFT, in which an appeal lies to Supreme Court under Section 31 (1) of AFT Act, 2007;

(c) under Art. 227 of the Constitution of India.

44. In the writ petitions before us, the petitioners have challenged the final orders passed by the AFT, without filing an application for leave to appeal to the Supreme Court under Section 31 (1) of the AFT Act, 2007.

45. All the writ petitions are consequently dismissed."

While differing with the view taken in Surendra Bahadur Singh, the Division Bench has observed that the principle of law which was laid down by a Constitution Bench of the Supreme Court in L. Chandra Kumar Vs. Union of India & Ors.3 is that judicial review under Article 226 of the Constitution is a constitutional remedy and is one of the basic features of the Constitution. Hence, in the view of the Division Bench, a constitutional remedy which forms part of the basic features of the Constitution cannot be whittled down by an Act of Parliament. The Division Bench observed that the High Court, in its discretion, may not entertain a writ petition if a suitable statutory alternative remedy is available but that is distinct from holding that the petition is not maintainable. This conflict of views has given rise to the reference before the Full Bench.

Background to the enactment of Armed Forces Tribunal Act, 2007

Article 33 of the Constitution provides thus:

"33. Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.- Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to, -

(a) the members of the Armed Forces; or

(b) the members of the Forces charged with the maintenance of public order; or

(c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or

(d) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c),

be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them."

The fundamental rights conferred by Part III of the Constitution may be restricted or abrogated in their application to members of the armed forces or the forces charged with the maintenance of public order to the extent so determined by Parliament by law to ensure the proper discharge of duties and the maintenance of discipline among them.

Entry 2 of the Union List to the Seventh Schedule of the Constitution covers naval, military and air forces and any other armed forces of the Union. Entry 95 of the Union List to the Seventh Schedule of the Constitution provides for the jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters contained in the Union List. Parliament, by virtue of Article 246 of the Constitution, has the exclusive jurisdiction to legislate on these heads of legislative power.

In Lt. Col. Prithi Pal Singh Bedi Vs. Union of India & Ors.4, a Bench of three learned Judges of the Supreme Court, held, following the decision of the Constitution Bench in Ram Sarup Vs. Union of India5 that:

"...every provision of the Army Act enacted by the Parliament, if in conflict with the fundamental rights conferred by Part III, shall have to be read subject to Article 33 as being enacted with a view to either restricting or abrogating other fundamental rights to the extent of inconsistency or repugnancy between Part III of the Constitution and the Army Act..."

However, the Supreme Court emphasised that:

"While investigating and precisely ascertaining the limits of inroads or encroachments made by legislation enacted in exercise of power conferred by Article 33, on the guaranteed fundamental rights to all citizens of this country without distinction, in respect of armed personnel, the court should be vigilant to hold the balance between two conflicting public interests; namely necessity of discipline in armed personnel to preserve national security at any cost, because that itself would ensure enjoyment of fundamental rights by others, and the denial to those responsible for national security of these very fundamental rights which are inseparable adjuncts of civilised life."

The Supreme Court, however, observed that there was a necessity to provide a fair, just and reasonable procedure under which judicial review of law and facts should be available to members of the armed forces who had been subjected to the military discipline of a court-martial to a body composed of non-military or civilian personnel. The Court observed that by enlisting in the armed forces, a person does not cease to be a citizen, to be wholly deprived of constitutional rights and though Parliament, in its wisdom, has been empowered to restrict or abrogate their fundamental rights, this process should not be carried so far as to create a class of citizens not entitled to the benefits of the liberal spirit of the Constitution. In the concluding part of the decision, the Supreme Court expressed the hope and belief that the changes which had taken place in the English speaking democracies would awaken Parliament to the changed value system. Cognisant of the expanding horizons of fairness under Article 14 and of personal liberty under Article 21 of the Constitution, Parliament eventually enacted the Armed Forces Tribunal Act, 2007.

The Armed Forces Tribunal Act, 2007

The Act has been enacted to provide for:

"...the adjudication or trial by Armed Forces Tribunal of disputes and complaints with respect to commission, appointments, enrolment and conditions of service in respect of persons subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950 and also to provide for appeals arising out of orders, findings or sentences of courts-martial held under the said Acts and for matters connected therewith or incidental thereto."

Section 3(o) of the Armed Forces Tribunal Act, 2007 defines the expression "service matters" as follows:

"service matters", in relation to the persons subject to the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950), means all matters relating to the conditions of their service and shall include -

(i) remuneration (including allowances), pension and other retirement benefits;

(ii) tenure, including commission, appointment, enrolment, probation, confirmation, seniority, training, promotion, reversion, premature retirement, superannuation, termination of service and penal deductions;

(iii) summary disposal and trials where the punishment of dismissal is awarded;

(iv) any other matter, whatsoever,

but shall not include matters relating to -

(i) orders issued under Section 18 of the Army Act, 1950 (46 of 1950), sub-section (1) of Section 15 of the Navy Act, 1957 (62 of 1957) and Section 18 of the Air Force Act, 1950 (45 of 1950); and

(ii) transfers and postings including the change of place or unit on posting whether individually or as a part of unit, formation or ship in relation to the persons subject to the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950)

(iii) leave of any kind;

(iv) Summary Court Martial except where the punishment is of dismissal or imprisonment for more than three months;"

Section 4 empowers the Central Government to establish the Armed Forces Tribunal to exercise the jurisdiction, powers and authority conferred by or under the Act. Under Section 5 (1), the Tribunal consists of a Chairperson and Judicial and Administrative Members. A Chairperson under Section 6(1) has to be either a retired Judge of the Supreme Court or a retired Chief Justice of a High Court. The qualification for appointment as a Judicial Member under Section 6(2) is that a person is or has been a Judge of the High Court. An Administrative Member under Section 6(3) must have (i) held the rank of Major General or higher, for at least three years in the Army or an equivalent rank in the Navy or under the Air Force; and (ii) should have served for not less than one year as Judge Advocate-General in the Army, Navy or Air Force and should not be below the rank of Major General, Commodore and Air Commodore respectively.

Chapter III of the Act deals with the jurisdiction, power and authority of the Tribunal. Section 14, insofar as is relevant, is to the following effect:

"14. Jurisdiction, powers and authority in service matters.- (1) 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.

(2) Subject to the other provisions of this Act, a person aggrieved by an order pertaining to any service matter may make an application to the Tribunal in such form and accompanied by such documents or other evidence and on payment of such fee as may be prescribed.

(3) On receipt of an application relating to service matters, the Tribunal shall, if satisfied after due inquiry, as it may deem necessary, that it is fit for adjudication by it, admit such application; but where the Tribunal is not so satisfied, it may dismiss the application after recording its reasons in writing."

Under sub-section (1) of Section 15, the Tribunal exercises, save as otherwise expressly provided, all the jurisdiction, powers and the authority exercisable under the Act in relation to an appeal against any order, decision, finding or sentence passed by a court-martial or any other matter connected therewith or incidental thereto. Chapter V of the Act provides for appeal. Under Section 30 (1), an appeal lies to the Supreme Court against a final decision or order of the Tribunal (other than an order passed under Section 19):

"30. Appeal to the Supreme Court. - (1) Subject to the provisions of section 31, an appeal shall lie to the Supreme Court against the final decision or order of the Tribunal (other than an order passed under section 19):

Provided that such appeal is preferred within a period of ninety days of the said decision or order:

Provided further that there shall be no appeal against an interlocutory order of the Tribunal."

Under sub-section (2) of Section 30, an appeal lies to the Supreme Court as of right from any decision or order of the Tribunal in the exercise of its jurisdiction to punish for contempt. Section 31(1) of the Act is to the following effect:

"31. Leave to appeal.- (1) An appeal to the Supreme Court shall lie with the leave of the Tribunal; and such leave shall not be granted unless it is certified by the Tribunal that a point of law of general public importance is involved in the decision, or it appears to the Supreme Court that the point is one which ought to be considered by that Court."

Hence, an appeal lies to the Supreme Court with the leave of the Tribunal only on a certification that a point of law of general public importance is involved or where it appears to the Supreme Court that the point is one which ought to be considered by that Court.

Section 33 of the Act provides for the exclusion of the jurisdiction of the Civil Court and is to the following effect:

"33. Exclusion of jurisdiction of civil courts. - On and from the date from which any jurisdiction, powers and authority becomes exercisable by the Tribunal in relation to service matters under this Act, no Civil Court shall have, or be entitled to exercise, such jurisdiction, power or authority in relation to those service matters."

SUBMISSIONS

On behalf of the Union of India, it has been urged that :

(i) The Armed Forces Tribunal Act, 2007 was enacted by Parliament under Article 246 read with Entry 2 of the Union List to the Seventh Schedule of the Constitution;

(ii) The Act provides for an appeal to the Supreme Court under Section 30 and Section 31;

(iii) The jurisdiction of the High Court is not excluded (a) in matters not covered by the definition of 'service matters' under Section 3(o); (b) in challenges against interlocutory orders where no appeal lies under the proviso to Section 30; and (c) in matters pertaining to a challenge to the constitutional validity of a provision of the Act;

(iv) The Statement of Object and Reasons accompanying the introduction of the Bill in Parliament would indicate that against the final orders of the Tribunal, an appeal is the only alternative efficacious and suitable remedy under Sections 30 and 31;

(v) The constitution, composition and selection of the Administrative Tribunals is distinct from the Armed Forces Tribunal and, hence, the decision of the Supreme Court in L. Chandra Kumar (supra) would not govern;

(vi) Under Entry 95 of the Union List to the Seventh Schedule, Parliament has the power to exclude the jurisdiction of all courts except the Supreme Court. The Constitution has conferred upon the armed forces a special status under Article 33 which empowers Parliament to restrict or abrogate the fundamental rights in their application to the armed forces by conferring exclusive power upon Parliament under Article 35 to make laws with respect to a matter falling under Article 33;

(vii) Under Article 136 (2), the power of judicial review of the Supreme Court is abrogated in relation to a judgment, determination, sentence or order of a Court or Tribunal constituted under any law relating to the armed forces; Article 227 (4) excludes judicial review in respect of the superintendence of the High Court over a Court or Tribunal constituted by a law relating to the armed forces;

(viii) If an order passed by the Armed Forces Tribunal is subjected to the jurisdiction of the High Court under Article 226, that jurisdiction not being supervisory, the order of the Tribunal would not merge with the order of the High Court and, hence, a remedy under Article 136 would not be available;

(ix) To determine what constitutes the basic structure of the Constitution and whether an Act is in violation of the basic structure, every case has to be independently viewed. In several other enactments, appeals are directly provided to the Supreme Court leading to the exclusion of judicial review under Articles 226 or 227 of the Constitution;

(x) A workable solution to maintain the jurisdiction of the High Court under Article 226 would be that :

(a) the validity of the Armed Forces Act, 2007 is open to challenge under Article 226;

(b) all matters which have been excluded under Section 3(o) are susceptible of challenge under Article 226;

(c) all interlocutory orders and other matters for which a provision has not been made in the Armed Forces Tribunal Act, 2007 can be subject to judicial review under Article 226. Since the High Court would be exercising original jurisdiction, a Special Leave Petition would be maintainable under Article 136 of the Constitution. In all other cases, judicial review under Article 226 stands excluded.

Decisions prior to L. Chandra Kumar

Following the judgment of 13 Judges in Kesavananda Bharati & Ors. Vs. State of Kerala & Anr.6, several decisions of the Supreme Court elaborated upon the doctrine of basic structure particularly in the context of judicial review. These include:

(1) Indira Nehru Gandhi Vs. Raj Narain & Anr.7

(2) Minerva Mills Ltd. & Ors. Vs. Union of India & Ors.8

(3) Fertilizer Corporation Kamgar Union & Ors. Vs. Union of India & Ors.9

(4) Kihoto Hollohan v. Zachillhu & Ors.10

In Indira Nehru Gandhi (supra), the constitutional validity of the 39th amendment to the Constitution was challenged on the ground that it offended the basic features of the Constitution. Chief Justice A.N. Ray held:

"Judicial review in India is not founded on any article similar to that in the American Constitution or the Australian Constitution; judicial review in many matters under statute had been excluded; judicial review in election disputes was not a compulsion; judicial review in election disputes may be entrusted by law to a tribunal; similarly, Article 33 excluded judicial review in matters relating to armed forces; Article 262(2) excluded jurisdiction of courts in border disputes; the amending body had excluded judicial review in Articles 31A, 31B and 31C; hence, the Constitution permitted by amendment exclusion of judicial review of a matter if it was necessary to give effect to Directive Principles of State Policy; a similar power may be available when such exclusion was needed in the larger interest of the security of the State11.

Justice H.R. Khanna held that:

"...It is not necessary in a democratic set-up that disputes relating to the validity of elections must be settled by courts of law; there were many countries like France, Japan and the United States of America where consistently with the democratic set-up the determination of such controversies was by the legislature or by authorities other than the courts..12. (emphasis supplied)

Justice K.K. Mathew held that:

"...Nobody can deny that by passing a law within its competence, Parliament can vest judicial power in any authority for deciding a dispute or vest a part of that power in itself for resolving a controversy, as there is no exclusive vesting of judicial power in courts by the Constitution. The doctrine of separation of powers which is directed against the concentration of the whole or substantial part of the judicial power in the Legislature or the Executive would not be a bar to the vesting of such a power in itself..13." (emphasis supplied)

Justice M.H. Beg held that:

"...Courts, however, have to test the legality of laws, whether they purport to be ordinary or constitutional, by the norms laid down in the Constitution; separation of powers and supremacy of the Constitution are parts of the ''basic structure' of the Constitution14. (emphasis supplied).

While dealing with the submission that judicial review is a part of the basic structure of the Constitution, Justice Y V Chandrachud noted that the fundamental premise of the argument was too broadly stated because the Constitution, as originally enacted, expressly excluded judicial review in a large variety of important matters. Many among them were Articles 31(4), 31(6), 136(2), 227(4), 262(2) and 329(a). Moreover, by Article 103(1), the Constitution bestowed jurisdiction on the President to determine any question arising under Article 102 regarding disqualification of a Member of Parliament. Judicial review was held not to form part of the basic structure in relation to elections to the legislatures. Hence, the judgment evaluated the position of judicial review in the case of electoral disputes and held that in those disputes, exclusion did not offend the basic feature. In that context, it was held as follows:

"...For determining whether a particular feature of the Constitution is a part of its basic structure, one has perforce to examine in each individual case the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of country's governance. ..

Judicial review, according to Shri Shanti Bhushan, is a part of the basic structure of the Constitution and since the Thirty-ninth Amendment by Article 329A (4) and (5) deprives the courts, including the Supreme Court, of their power to adjudicate upon the disputed election, the amendment is unconstitutional. The fundamental premise of this argument is too broadly stated because the Constitution, as originally enacted, expressly excluded judicial review in a large variety of important matters. Articles 31(4), 31(6), 136(2), 227(4), 262(2) and 329(a) are some of the instances in point. True, that each of these provisions has a purpose behind it but these provisions show that the Constitution did not regard judicial review as an indispensable measure of the legality or propriety of every determination. Article 136(2) expressly took away the power of the Supreme Court to grant special leave to appeal from the decisions of any court or tribunal constituted by a law relating to the armed forces. Article 262(2) authorized the Parliament to make a law providing that the Supreme Court or any other court shall have no jurisdiction over certain river disputes. But what is even more to the point are the provisions contained in Articles 103(1) and 329(b). Article 102 prescribes disqualifications for membership of the Parliament. By Article 103(1), any question arising under Article 102 as to whether a Member of the Parliament has become subject to any disqualification has to be referred to the President whose decisions is final. The President is required by Article 103(2) to obtain the opinion of the Election Commission and act according to its opinion. Thus, in a vital matter pertaining to the election for membership of the Parliament, the framers of the Constitution had left the decision to the judgment of the Executive. Articles 327 and 328 give power to the Parliament and the State Legislatures to provide by law for all matters relating to elections to the respective Legislatures, including the preparation of electoral rolls and the delimitation of constituencies. By Article 329(a), the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies cannot be called in question in any court.

...Since the Constitution, as originally enacted, did not consider that judicial power must intervene in the interests of purity of elections, judicial review cannot be considered to be a part of the basic structure insofar as legislative elections are concerned. The theory of basic structure had to be considered in each individual case, not in the abstract, but in the context of the concrete problem. The problem here is whether under our Constitution, judicial review was considered as an indispensible concomitant of elections to country's Legislatures. The answer, plainly, is not."15 (emphasis supplied)

In Minerva Mills Ltd. (supra), the question for consideration was whether Sections 4 and 55 of the Constitution (Forty-second Amendment) Act, 1976 exceeded the limitation on the amending power of Parliament under Article 368. In other words, whether the amendments to Article 31C and Article 368 amended the basic structure of the Constitution. The majority view was that clauses (4) and (5) of Article 368 which were inserted into the Constitution by Section 55 were unconstitutional as they exceeded the amending power of Parliament. Section 4 was held to be unconstitutional on the ground that it offended the balance between the fundamental rights and directive principles. The leading judgment of the majority held as follows:

"The newly introduced clause (4) of Article 368 must suffer the same fate as clause (5) because the two clauses are inter-linked. Clause (5) purports to remove all limitations on the amending power while clause (4) deprives the courts of their power to call in question any amendment of the Constitution. Our Constitution is founded on a nice balance of power among the three wings of the State, namely the Executive, the Legislature and the Judiciary. It is the function of the Judges, nay their duty, to pronounce upon the validity of laws. If courts are totally deprived of that power, the fundamental rights conferred upon the people will become a mere adornment because rights without remedies are as writ in water. A controlled Constitution will then become uncontrolled. Clause (4) of Article 368 totally deprives the citizens of one of the most valuable modes of redress which is guaranteed by Article 32. The conferment of the right to destroy the identity of the Constitution coupled with the provision that no court of law shall pronounce upon the validity of such destruction seems to us a transparent case of transgression of the limitations on the amending power.

If a constitutional amendment cannot be pronounced to be invalid even if it destroys the basic structure of the Constitution, a law passed in pursuance of such an amendment will be beyond the pale of judicial review because it will receive the protection of the constitutional amendment which the courts will be powerless to strike down. Article 13 of the Constitution will then become a dead letter because even ordinary laws will escape the scrutiny of the courts on the ground that they are passed on the strength of a constitutional amendment which is not open to challenge16. (emphasis supplied).

Justice Bhagwati was in agreement with the majority on the issue of the validity of clauses (4) and (5) of Article 368. However, insofar as the validity of Article 31C was concerned, unlike the majority, His Lordship held that the amended Article was constitutionally valid. In regard to the power of judicial review, Justice Bhagwati held as follows:

"...The judiciary is the interpreter of the Constitution and to the judiciary is assigned the delicate task to determine what is the power conferred on each branch of government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for the judiciary to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law, which inter alia requires that "the exercise of powers by the government whether it be the legislature or the executive or any other authority, be conditioned by the Constitution and the law". The power of judicial review is an integral part of our constitutional system and without it, there will be no government of laws and the rule of law would become a teasing illusion and a promise of unreality. I am of the view that if there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably, to my mind, part of the basic structure of the Constitution. Of course, when I say this I should not be taken to suggest that effective alternative institutional mechanisms or arrangements for judicial review cannot be made by Parliament. But what I wish to emphasise is that judicial review is a vital principle of our Constitution and it cannot be abrogated without affecting the basic structure of the Constitution...17." (emphasis supplied).

In Fertilizer Corporation Kamgar Union (supra), the Constitution Bench of the Supreme Court decided whether the workmen of a public enterprise had the locus standi to challenge the sale of the plant and machinery of an enterprise on the ground that it deprived the workmen of the fundamental right under Article 19(1)(g) of the Constitution and on the ground that the sale violated Article 14. On the issue of judicial review, the Supreme Court held as follows:

"11. The jurisdiction conferred on the Supreme Court by Article 32 is an important and integral part of the basic structure of the Constitution because it is meaningless to confer fundamental rights without providing an effective remedy for their enforcement, if and when they are violated. A right without a remedy is a legal conundrum of a most grotesque kind. While the draft Article 25, which corresponds to Article 32, was being discussed in the Constituent Assembly, Dr Ambedkar made a meaningful observation by saying:

"If I was asked to name any particular article in this Constitution as the most important - an article without which this Constitution would be a nullity - I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realised its importance18."

But though the right guaranteed by Article 32 is one of the highly cherished rights conferred by the Constitution, the purpose for which that right can be enforced is stated in the very Article which confers that right. The violation of a fundamental right is the sine qua non of the exercise of the right conferred by Article 32." (emphasis supplied).

In Kihoto Hollohan (supra), a Constitution Bench of the Supreme Court considered a challenge to the constitutional validity of the Tenth Schedule to the Constitution. The majority, while upholding the constitutional validity of the amendment incorporating the Tenth Schedule, held that paragraph 7 which, in effect, conferred an absolute power on the Speaker as a sole and final arbiter of a dispute as to disqualification, vitiated the basic structure of the Constitution. The minority view was that the entirety of the amendment was constitutionally invalid including paragraph 7. The majority view held as follows:

"181.The Speaker being an authority within the House and his tenure being dependent on the will of the majority therein, likelihood of suspicion of bias could not be ruled out. The question as to disqualification of a Member has adjudicatory disposition and, therefore, requires the decision to be rendered in consonance with the scheme for adjudication of disputes. Rule of law has in it firmly entrenched, natural justice, of which, rule against bias is a necessary concomitant; and basic postulates of rule against bias are: nemo judex in causa sua - ''A Judge is disqualified from determining any case in which he may be, or may fairly be suspected to be, biased'; and ''it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done...'

182. In the Tenth Schedule, the Speaker is made not only the sole but the final arbiter of such dispute with no provision for any appeal or revision against the Speaker's decision to any independent outside authority. This departure in the Tenth Schedule is a reverse trend and violates a basic feature of the Constitution since the Speaker cannot be treated as an authority contemplated for being entrusted with this function by the basic postulates of the Constitution, notwithstanding the great dignity attaching to that office with the attribute of impartiality."

In R.K. Jain Vs. Union of India & Ors.19, the Supreme Court held that judicial review is a basic and essential feature of the constitutional scheme:

"70. In a democracy governed by rule of law surely the only acceptable repository of absolute discretion should be the courts. Judicial review is the basic and essential feature of the Indian constitutional scheme entrusted to the judiciary. It cannot be dispensed with by creating a Tribunal under Articles 323A and 323B of the Constitution. Any institutional mechanism or authority in negation of judicial review is destructive of the basic structure. So long as the alternative institutional mechanism or authority set up by an Act is not less effective than the High Court, it is consistent with the constitutional scheme. The faith of the people is the bedrock on which the edifice of judicial review and efficacy of the adjudication are founded. The alternative arrangement must, therefore, be effective and efficient for inspiring confidence and trust in the litigant public. They must have an assurance that the person deciding their causes is totally and completely free from the influence or pressure from the Government. To maintain independence and imperativity, it is necessary that the personnel should have at least modicum of legal training, learning and experience. Selection of competent and proper people instils people' faith and trust in the office and helps to build up the reputation and acceptability. Judicial independence which is essential and imperative is secured and independent and impartial administration of justice is assured. Absence thereof only may get both law and procedure wronged and wrong-headed views of the facts and is likely to give rise to nursing grievances of injustice. Therefore, functional fitness, experience at the Bar and aptitudinal approach are fundamental for efficient judicial adjudication. Then only as a repository of the confidence, as its duty, the tribunal would properly and efficiently interpret the law and apply the law to the given set of facts. Absence thereof would be repugnant or derogatory to the constitution."

The three learned Judges of the Hon'ble Supreme Court in R.K. Jain, while discussing the decision of the Constitution Bench in in S.P. Sampath Kumar Vs. Union of India & Ors.20 observed that the Court did not appear to have meant the Tribunal to be a substitute of the High Court under Articles 226 and 227 of the Constitution. In that context, the Supreme Court observed as follows:

"67. The tribunals set up under Articles 323A and 323B of the Constitution or under an Act of legislature are creatures of the statute and in no case claim the status as Judges of the High Court or parity or as substitutes. However, the personnel appointed to hold those offices under the State are called upon to discharge judicial or quasi-judicial powers. So they must have judicial approach and also knowledge and expertise in that particular branch of constitutional, administrative and tax laws. The legal input would undeniably be more important and sacrificing the legal input and not giving it sufficient weightage and teeth would definitely impair the efficacy and effectiveness of the judicial adjudication. It is, therefore, necessary that those who adjudicate upon these matters should have legal expertise, judicial experience and modicum of legal training as on many an occasion different and complex questions of law which baffle the minds of even trained Judges in the High Court and Supreme Court would arise for discussion and decision."

Decision in L Chandra Kumar

In L Chandra Kumar Vs. Union of India & Ors.21, the reference before a Bench of seven learned Judges was necessitated in order to consider the decision of the Constitution Bench in Sampath Kumar (supra). Among the matters before the Supreme Court was an appeal which arose from a decision of a Full Bench of the Andhra Pradesh High Court in Sakinala Hari Nath Vs. State of Andhra Pradesh22 in which Articles 323A(2)(d)23 and 323B(3)(d)24 of the Constitution had been declared to be unconstitutional to the extent that they empowered Parliament to exclude the jurisdiction of the High Courts under Article 226. Additionally, Section 28 of the Administrative Tribunals Act, 1985 had been held to be unconstitutional to the extent to which it divested the High Courts' jurisdiction in service matters. Three issues came up for determination by the Supreme Court:

(i) whether the power of judicial review of the Supreme Court under Article 32 and of the High Courts under Articles 226 and 227 of the Constitution could be excluded by statutes enacted in pursuance of Article 323A or 323B of the Constitution;

(ii) whether Tribunals, constituted under Article 323A or 323B of the Constitution, possess the competence to decide constitutional issues; and

(iii) whether Tribunals are effective substitutes for the High Courts in discharging the power of judicial review.

For convenience of exposition, the ruling of the Supreme Court on the three issues is now summarised:

Issue No.1 - Whether the power of judicial review of the Supreme Court under Article 32 and of the High Courts under Articles 226 and 227 of the Constitution could be excluded by statutes enacted in pursuance of Article 323A or 323B of the Constitution.

The Supreme Court held that the power of judicial review of the Supreme Court under Article 32 and of the High Courts under Articles 226/227 cannot be excluded as they form part of the inviolable basic structure of the Constitution. The first ingredient of this principle is that the power of the High Courts and of the Supreme Court to test the constitutional validity of legislation can never be ousted or excluded. The power of judicial review over legislative action which is vested in the High Court under Article 226 of the Constitution and of the Supreme Court under Article 32 is part of the basic and essential features of the Constitution:

"...The Judges of the superior courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations. It is equally their duty to oversee that the judicial decisions rendered by those who man the subordinate courts and tribunals do not fall foul of strict standards of legal correctness and judicial independence. The constitutional safeguards which ensure the independence of the Judges of the superior judiciary, are not available to the Judges of the subordinate judiciary or to those who man Tribunals created by ordinary legislations. Consequently, Judges of the latter category can never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation. We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Article 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded."25

The second ingredient of this principle is that the power which is vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals also constitutes a part of the basic structure of the Constitution:

"We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided26."

The Supreme Court held that clause 2(d) of Article 323A and clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and of the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional27. Consequently, Section 28 of the Administrative Tribunals Act, 1985 and the exclusionary clauses under other legislation enacted under Articles 323A and 323B would, to the same extent, be unconstitutional. Hence, no appeal from a decision of a Tribunal would lie to the Supreme Court under Article 136 of the Constitution and an aggrieved party would be entitled to move the High Court under Articles 226/227 of the Constitution. Against the decision of the Division Bench of the High Court under Articles 226/227, the aggrieved party could move the Supreme Court under Article 13628.

Issue No.2 - Whether the Tribunals, constituted under Article 323A or 323B of the Constitution, possess the competence to decide constitutional issues.

On this issue, the Supreme Court held that a question involving the interpretation of a statutory provision or a rule in relation to the Constitution would be adjudicated upon by a Bench of the Tribunal consisting of at least two members, one of whom must be a Judicial Member. The Supreme Court rejected the broad contention that Tribunal should not be allowed to adjudicate upon matters where the vires of legislation is questioned. In the view of the Supreme Court, if such a view were to be adopted, it would be open for litigants to raise constitutional issues, many of which may be frivolous, thereby directly approaching the High Courts and, thus, subverting the jurisdiction of the Tribunal. Moreover, in special branches of law, some areas do involve a consideration of constitutional questions on a regular basis; for instance, in service law cases, a large majority of cases involve an interpretation of Articles 14, 15 and 16. However, while the Tribunals would have the jurisdiction to determine the vires of statutory provisions, they would be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution29. This power of the Tribunals to test the validity of legislation or the vires of subordinate legislation was made subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the well settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the High Court could be approached directly. Consequently, in all other cases, the Tribunals will continue as the only courts of first instance in respect of the areas of law for which they have been constituted:

"The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional set-up, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the High Court concerned may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts. We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal30.

Issue No.3 - Whether the Tribunals are effective substitutes for the High Courts in discharging the power of judicial review.

On this aspect, the Supreme Court held that the Tribunals cannot substitute the High Courts in discharging the function of constitutional interpretation. The constitutional safeguards which ensure the independence of the Judges of the superior judiciary are not available to those who man Tribunals created by ordinary legislation and consequently the Judges of the Tribunal can never be considered to be full and effective substitutes for the Judges of the superior judiciary. On the issue of administrative supervision, the Supreme Court observed that all Tribunals should, as far as possible, be administered by a wholly independent agency and until such a body is set up, they shall be administered by the Ministry of Law.

The balance between the need for tribunals and judicial review

The first important principle underlying the establishment of Tribunals is to ensure specialised and efficacious administration of justice. Mounting arrears of litigation before High Courts constitutes an important consideration underlying the setting up of Tribunals. The specialised knowledge or domain expertise of the Judges constituting the Tribunal would enable the Tribunal to effectively administer justice. This, in turn, would facilitate expeditious rendering of justice. The second important principle is the need to preserve the power of judicial review of the Supreme Court under Article 32 and of the High Courts under Articles 226 and 227 which are essential to the sustenance of the rule of law. The power of judicial review of the High Courts and of the Supreme Court having been held to be a basic feature of the Constitution, any legislation which would abrogate or exclude judicial review would be unconstitutional.

The balance which was brought about by the Supreme Court in L. Chandra Kumar was by assigning to the Tribunals a supplementary role as distinct from a substitutive role. The Tribunals would supplement the power of judicial review. Assigning to the Tribunals a supplementary role would not constitute an infraction of the constitutional scheme. In holding that there was no constitutional prohibition against Tribunals "performing a supplemental - as opposed to substitutional - role", there would be no risk of a constitutional violation31. In fact, Article 32(3) which is described as the 'heart and soul' of the Constitution, contemplates that Parliament, without prejudice to the powers which have been conferred on the Supreme Court, may empower any other Court to exercise the powers which are exercisable by the Supreme Court under clause (2) of Article 32. If the power of the Supreme Court under Article 32(2) could also be conferred upon any other Court, there was no reason why the same position could not apply in respect of the jurisdiction under Articles 226/227. Parliament possesses legislative competence to effect changes in the original jurisdiction of the Supreme Court under Entries 77, 78, 79 and 95 of the Union List. The State Legislatures have similar powers in respect of the High Courts under Entry 65 of the State List, while Entry 46 of the Concurrent List can be availed of both by Parliament and the State Legislatures.

In this background, the balance which has been drawn by the Supreme Court is that the Tribunals would, in a supplementary role, have the power to adjudicate upon issues involving the constitutional validity of statutes and rules with the exception that a Tribunal cannot rule upon the constitutionality of the statute under which it is constituted. At the same time, the power of judicial review of the High Courts under Articles 226/227 would not be ousted. But the Tribunals shall act as courts of first instance in respect of areas for which they are constituted and it would not be open to a litigant to directly approach the High Court by overlooking jurisdiction of the Tribunal. Even where the vires of a statutory provision or a rule is challenged, it would not be open to a litigant to directly approach the High Court and it is only where the validity of a parent statute establishing the Tribunal is challenged, that the High Court can be moved in the first instance. The decision of the Tribunal would be subject to the scrutiny of a Division Bench of the High Court within whose jurisdiction the Tribunal falls. Against the judgment of the Division Bench, a Special Leave Petition would lie under Article 136 of the Constitution before the Supreme Court. By assigning to the Tribunals a supplemental as distinct from a substitutive role, the Supreme Court took notice of the rationale for the constitution of the Tribunals, namely the need to have specialization and expedition in areas of domain expertise where the Tribunals have been constituted. This principle was fostered by the principle that though the Tribunals are supplemental to the High Court and not substitutes, they would be a forum of first instance. The High Court should not be approached directly except where the validity of the legislation constituting the Tribunal itself is challenged. By allowing Tribunals to rule on constitutional issues, the Supreme Court ensured that the High Courts would have the benefit of a reasoned decision of a Tribunal.

The fundamental principle which emerges from the decision in L. Chandra Kumar is that Articles 32 and 226 of the Constitution constitute a part of the basic features of the Constitution. The power of judicial review of the Supreme Court and of the High Courts under these provisions cannot wholly be excluded but those powers can additionally be conferred on other Courts or Tribunals which would act as courts of first instance. The Supreme Court noted that since independence ' the quantity of litigation before the High Courts has exploded in an unprecedented manner'32 and there were 'pressing reasons' to preserve the conferment of jurisdiction upon the Tribunals. At the same time, the functioning of not all the Tribunals had inspired confidence in terms of their competence, objectivity and judicial approach or in regard to their constitution, powers and appointment of personnel. The decision in L. Chandra Kumar has drawn a fine balance by which, while on the one hand the basic reason for the creation of specialized Tribunals is acknowledged and their jurisdiction as courts of first instance emphasized, a proliferation of Tribunals does not take place at the cost of abrogating the power of judicial review of the superior courts which is part of the basic features of the Constitution.

Decisions subsequent to L. Chandra Kumar

In State of Andhra Pradesh & Ors. Vs. K. Mohanlal & Anr.33, the Supreme Court while deciding upon the constitutional validity of Special Courts under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982, held as follows:

"10. If this is so, then the observations in the case of S.P. Sampath Kumar [(1987) 1 SCC 124 : (1987) 2 ATC 82] to which our attention was drawn, will not now apply. Undoubtedly it is highly desirable that Administrative Tribunals enjoy the same degree of independence as judicial bodies, if the independence of the judiciary is not to be diluted by creation of tribunals that do not enjoy the same degree of independence. Nevertheless, the power of judicial review granted under the Constitution to the higher judiciary under Articles 226, 227 and 32 of the Constitution is an important check on the malfunctioning of tribunals. In this context, in L. Chandra Kumar case [(1997) 3 SCC 261 : 1997 SCC (L&S) 577], this Court has expressly observed: (SCC para 78)

"The constitutional safeguards which ensure the independence of the Judges of the superior judiciary, are not available to the Judges of the subordinate judiciary or with those who man tribunals created by ordinary legislations. Consequently, Judges of the latter category can never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation. We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Article 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure."

11. In the perspective of these observations, it would not be correct to hold that because the members of the Special Court, in the present case, can be appointed by the Government without consulting the Chief Justice of the State, the Special Court is an unconstitutional court, since its members do not enjoy the same degree of independence as the members of the higher judiciary, especially when the Chairman's appointment is in consultation with the Chief Justice of the State. Also, the remedy under Articles 226 and 227 is available against the orders of the Special Court." (emphasis supplied).

In T.K. Rangarajan Vs. Government of T.N. & Ors.34, the Supreme Court, while entertaining a writ petition challenging the termination by the State Government of the services of all employees who had resorted to a strike, observed as follows:

"10. There cannot be any doubt that the aforesaid judgment of larger Bench is binding on this Court and we respectfully agree with the same. However, in a case like this, if thousands of employees are directed to approach the Administrative Tribunal, the Tribunal would not be in a position to render justice to the cause. Hence, as stated earlier, because of very very exceptional circumstance that arose in the present case, there was no justifiable reason for the High Court not to entertain the petitions on the ground of alternative remedy provided under the statute."

In Rajeev Kumar & Anr. Vs. Hemraj Singh Chauhan & Ors.35, the Supreme Court considered whether the appellants had the locus standi to seek impleadment to the writ proceedings before the High Court challenging an order of the Central Administrative Tribunal to which they were not parties. The Supreme Court held as follows:

"14. The grievances of the appellants in this appeal are that they were not made parties in proceedings before the Tribunal. But in the impleadment application filed before the High Court it was not averred by them that they were not aware of the pendency of the proceedings before the Tribunal. Rather from the averments made in the impleadment petition it appears that they were aware of the pendency of the proceedings before the Tribunal. It was therefore, open for them to approach the Tribunal with their grievances. Not having done so, they cannot, in view of the clear law laid down by the Constitution Bench of this Court in L. Chandra Kumar [(1997) 3 SCC 261 : 1997 SCC (L&S) 577], approach the High Court and treat it as the court of first instance in respect of their grievances by "overlooking the jurisdiction of the Tribunal". CAT also has the jurisdiction of review under Rule 17 of the Central Administrative Tribunal (Procedure) Rules, 1987. So, it cannot be said that the appellants were without any remedy.

15. As the appellants cannot approach the High Court by treating it as a court of first instance, their special leave petition before this Court is also incompetent and not maintainable.

16. The principles laid down in L. Chandra Kumar [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] virtually embody a rule of law and in view of Article 141 of the Constitution the same is binding on the High Court. The High Court fell into an error by allowing the appellants to approach it in clear violation of the Constitution Bench judgment of this Court in L. Chandra Kumar [(1997) 3 SCC 261 : 1997 SCC (L&S) 577]."

In Union of India Vs. R. Gandhi, President, Madras Bar Association36, the Constitution Bench of the Supreme Court considered the constitutional validity of the National Company Law Tribunal and the National Company Law Appellate Tribunal. On the issue as to whether the Government can transfer judicial functions traditionally performed by the Courts to Tribunals, the Supreme Court observed as follows:

"87. The Constitution contemplates judicial power being exercised by both courts and tribunals. Except the powers and jurisdictions vested in superior courts by the Constitution, powers and jurisdiction of courts are controlled and regulated by legislative enactments. The High Courts are vested with the jurisdiction to entertain and hear appeals, revisions and references in pursuance of provisions contained in several specific legislative enactments. If jurisdiction of the High Courts can be created by providing for appeals, revisions and references to be heard by the High Courts, jurisdiction can also be taken away by deleting the provisions for appeals, revisions or references. It also follows that the legislature has the power to create tribunals with reference to specific enactments and confer jurisdiction on them to decide disputes in regard to matters arising from such special enactments. Therefore it cannot be said that legislature has no power to transfer judicial functions traditionally performed by courts to tribunals.

..."9037 But when we say that the legislature has the competence to make laws, providing which disputes will be decided by courts, and which disputes will be decided by tribunals, it is subject to constitutional limitations, without encroaching upon the independence of the judiciary and keeping in view the principles of the rule of law and separation of powers. If tribunals are to be vested with judicial power hitherto vested in or exercised by courts, such tribunals should possess the independence, security and capacity associated with courts. If the tribunals are intended to serve an area which requires specialised knowledge or expertise, no doubt there can be technical members in addition to judicial members. Where however jurisdiction to try certain category of cases are transferred from courts to tribunals only to expedite the hearing and disposal or relieve from the rigours of the Evidence Act and procedural laws, there is obviously no need to have any non-judicial technical member. In respect of such tribunals, only members of the judiciary should be the Presiding Officers/Members. Typical examples of such special tribunals are Rent Tribunals, Motor Accidents Claims Tribunals and Special Courts under several enactments. Therefore, when transferring the jurisdiction exercised by courts to tribunals, which does not involve any specialised knowledge or expertise in any field and expediting the disposal and relaxing the procedure is the only object, a provision for technical members in addition to or in substitution of judicial members would clearly be a case of dilution of and encroachment upon the independence of the judiciary and the rule of law and would be unconstitutional." (emphasis supplied)

In Nivedita Sharma Vs. Cellular Operators Association of India38, the Supreme Court held that availability of an alternative remedy under Section 19 of the Consumer Protection Act, 1986 was not a bar to the maintainability of a writ petition under Articles 226/227. The Supreme Court observed as follows:

"11. There cannot be any dispute that the power of the High Courts to issue directions, orders or writs including writs in the nature of habeas corpus, certiorari, mandamus, quo warranto and prohibition under Article 226 of the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary legislation--L. Chandra Kumar v. Union of India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] . However, it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution, the High Court can entertain a writ petition against any order passed by or action taken by the State and/or its agency/instrumentality or any public authority or order passed by a quasi-judicial body/authority, and it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. Rather, it is settled law that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation."

In R. Mohajan & Ors. Vs. Shefali Sengupta & Ors.39, the Supreme Court while deciding the maintainability of an appeal against a decision of the Administrative Tribunal, other than contempt proceedings, observed thus:

"15. It is clear from the above dictum in L. Chandra Kumar [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] that no appeal from the decision of the Tribunal will directly lie before this Court under Article 136 of the Constitution of India, but instead, the aggrieved party has to move the High Court under Articles 226/227 of the Constitution and thereafter from the decision of the Division Bench of the High Court, the aggrieved parties are free to approach this Court."

In Columbia Sportswear Company Vs. Director of Income Tax, Bangalore40, a Bench of three learned Judges of the Supreme Court considered whether an advance ruling pronounced by the Authority for Advance Rulings can be challenged under Article 226/227 before the High Court or under Article 136 before the Supreme Court. In that context, it was held as follows:

"16. The fact that sub-section (1) of Section 245-S makes the advance ruling pronounced by the Authority binding on the applicant, in respect of the transaction and on the Commissioner and the income tax authorities subordinate to him in respect of the applicant and the transaction would not affect the jurisdiction of either this Court under Article 136 of the Constitution or of the High Courts under Articles 226 and 227 of the Constitution to entertain a challenge to the advance rulings pronounced by the Authority. The reason for this view is that Articles 136, 226 and 227 of the Constitution are constitutional provisions vesting jurisdiction on this Court and the High Courts and a provision of an Act of legislature making the decision of the Authority final or binding could not come in the way of this Court or the High Courts to exercise jurisdiction vested under the Constitution. ...

17. Considering the settled position of law that the powers of this Court under Article 136 of the Constitution and the powers of the High Court under Articles 226 and 227 of the Constitution could not be affected by the provisions made in a statute by the legislature making the decision of the tribunal final or conclusive, we hold that sub-section (1) of Section 245-S of the Act insofar as it makes the advance ruling of the Authority binding on the applicant, in respect of the transaction and on the Commissioner and income tax authorities subordinate to him, does not bar the jurisdiction of this Court under Article 136 of the Constitution or the jurisdiction of the High Court under Articles 226 and 227 of the Constitution to entertain a challenge to the advance ruling of the Authority." (emphasis supplied)

In Namit Sharma Vs. Union of India41, the Supreme Court while deciding upon the constitutional validity of certain provisions of the Right to Information Act, 2005, observed as follows:

"33. Every authority/department is required to designate the Public Information Officers and to appoint the Central Information Commission and the State Information Commissions in accordance with the provisions of Sections 12 and 15 of the Act of 2005. It may be noticed that under the scheme of this Act, the Public Information Officers at the Centre and the State levels are expected to receive the requests/applications for providing the information. Appeal against decision of such Public Information Officer would lie to his senior in rank in terms of Section 19(1) within a period of 30 days. Such first appellate authority may admit the appeal after the expiry of this statutory period subject to satisfactory reasons for the delay being established. A second appeal lies to the Central or the State Information Commission, as the case may be, in terms of Section 19(3) within a period of 90 days. The decision of the Commission shall be final and binding as per Section 19(7). Section 19 is an exhaustive provision and the Act of 2005 on its cumulative reading is a complete code in itself. However, nothing in the Act of 2005 can take away the powers vested in the High Court under Article 226 of the Constitution and of this Court under Article 32. The finality indicated in Sections 19(6) and 19(7) cannot be construed to oust the jurisdiction of higher courts, despite the bar created under Section 23 of the Act. It always has to be read and construed subject to the powers of the High Court under Article 226 of the Constitution. Reference in this regard can be made to the decision of a Constitution Bench of this Court in L. Chandra Kumar v. Union of India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577].

77. .. An order passed by the Commission is final and binding and can only be questioned before the High court or the Supreme Court in exercise of the Court's jurisdiction under Article 226 and/or Article 32 of the Constitution, respectively.

80. Further, Section 23 is a provision relating to exclusion of jurisdiction of the courts. In terms of this section, no court shall entertain any suit, application or other proceedings in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal provided for under this Act. In other words, the jurisdiction of the court has been ousted by express language. Nevertheless, it is a settled principle of law that despite such excluding provision, the extraordinary jurisdiction of the High Court and the Supreme Court, in terms of Articles 226 and 32 of the Constitution respectively, cannot be divested. It is a jurisdiction incapable of being eroded or taken away by exercise of legislative power, being an important facet of the basic structure of the Constitution..." (emphasis supplied)

Decisions of High Courts

At this stage, it would be appropriate to refer to two decisions of the Delhi and Madhya Pradesh High Courts which have applied the law laid down in L. Chandra Kumar in the context of the Armed Forces Tribunal Act, 2007:

Colonel A.D. Nargolkar Vs. Union of India & Ors.42

Ravindra Nath Tripathi Vs. Union of India & Ors.43

In Colonel A.D. Nargolkar (supra), a Division Bench of the Delhi High Court held that a writ petition under Article 226 of the Constitution against an order passed by the Armed Forces Tribunal was maintainable:

"89. To summarize, the position would be that the Armed Forces Tribunal, being manned by personnel appointed by the Executive, albeit in consultation with the Chief Justice of India cannot be said to be truly a judicial review forum as a substitute to High Courts which are constitutional courts and the power of judicial review, being a basic feature of the Constitution, under Article 226 and Article 227 of the Constitution of India is unaffected by the constitution of the Armed Forces Tribunal. Further, Article 227(4) of the Constitution of India takes away only the administrative supervisory jurisdiction over the Armed Forces Tribunal. Thus, decisions by the Armed Forces Tribunal would be amenable to judicial review by High Court under Article 226 as also Article 227 of the Constitution of India."

In Ravindra Nath Tripathi (supra), Hon'ble Mr. Justice S.A. Bobde (as His Lordship then was), speaking for a Division Bench of the Madhya Pradesh High Court held that Section 14 of the Armed Forces Tribunal Act, 2007 empowers the Tribunal to exercise jurisdiction, power and authority exercisable by all Courts except that of the Supreme Court or by a High Court under Articles 226/227 and that the provisions must be read strictly. In that context, the learned Judge held as follows:

"9. In the circumstances, we find that there is no exclusion of the jurisdiction of this Court under Article 226/227 of the Constitution in relation to subject-matter, but on the contrary what is conferred on the Tribunal is the jurisdiction, powers and authority exercisable by all Courts except the powers and authority of the Supreme Court and the High Court under Articles 226 and 227 of the Constitution of India. L. Chandra Kumar's case (supra) cannot be treated as authority for the proposition as contended by Shri Tiwari that every Tribunal established under Articles 323-A and 323-B of the Constitution alone has jurisdiction to decide upon the matters involving the constitutional validity of the statutes. Undoubtedly, Clause 2(b) of Article 323-A and Clause 3(d) of Article 323-B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution have been held to be unconstitutional, but that is clearly on the ground that the jurisdiction conferred upon the High Court under Article 226/227 of the Constitution of India and upon the Supreme Court under Article 32 of the Constitution of India is a part of the inviolable basic structure of our Constitution. Thus, the point can be viewed from two aspects; one, what powers have conferred on the Tribunal under the AFT Act and two, correspondingly, whether there is any exclusion of the jurisdiction of the High Courts. This can be done only by considering the plain meaning of the parliamentary legislation by which jurisdiction has been conferred on the Tribunal. As noted earlier the plain words of Section 14 of the AFT Act only confers the jurisdiction, power and authority exercisable by all Courts and in the same breath carves out an exception in relation to the powers of the Supreme Court or the High Court exercising jurisdiction under Articles 226/227 of the Constitution. Considering the matter from the point of view of exclusion of jurisdiction of the High Court, Parliament has left no doubt in expressing its intention to retain the jurisdiction of the High Court under Article 226/227 of the Constitution in relation to the service matters governed by the AFT Act."

I.R. Coelho

The Supreme Court in I.R. Coelho Vs. State of Tamil Nadu44, considered whether on and after 24 April 1973 when the judgment in Kesavanand Bharati was delivered, is it permissible for Parliament under Article 31B to immunise legislation from the fundamental rights by inserting it into the Ninth Schedule and, if so, what would be the effect on the power of judicial review of the Supreme Court. Chief Justice Sabharwal observed that 'the real crux of the problem is, as to the extent and nature of immunity that Article 31B can validly provide. .." Hence, the essential question was whether the basic structure test includes judicial review of Ninth Schedule laws on the touchstone of the fundamental rights. The conclusion, which was arrived at by the Supreme Court, was as follows:-

""151. In conclusion, we hold that:

(i) A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the basic structure doctrine or it may not. If former is the consequence of the law, whether by amendment of any article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in exercise of judicial review power of the Court. The validity or invalidity would be tested on the principles laid down in this judgment.

(ii) The majority judgment in Kesavananda Bharati case [(1973) 4 SCC 225] read with Indira Gandhi case [1975 Supp SCC 1] requires the validity of each new constitutional amendment to be judged on its own merits. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account for determining whether or not it destroys basic structure. The impact test would determine the validity of the challenge.

(iii) All amendments to the Constitution made on or after 24-4-1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19, and the principles underlying them. To put it differently even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would be open to attack on the ground that they destroy or damage the basic structure if the fundamental right or rights taken away or abrogated pertains or pertain to the basic structure.

(iv) Justification for conferring protection, not blanket protection, on the laws included in the Ninth Schedule by constitutional amendments shall be a matter of constitutional adjudication by examining the nature and extent of infraction of a fundamental right by a statute, sought to be constitutionally protected, and on the touchstone of the basic structure doctrine as reflected in Article 21 read with Article 14 and Article 19 by application of the "rights test" and the "essence of the right" test taking the synoptic view of the articles in Part III as held in Indira Gandhi case [1975 Supp SCC 1] . Applying the above tests to the Ninth Schedule laws, if the infraction affects the basic structure then such law(s) will not get the protection of the Ninth Schedule.

This is our answer to the question referred to us vide order dated 14-9-1999 in I.R. Coelho v. State of T.N. [(1999) 7 SCC 580]."

In regard to the power of judicial review, the observations made in the decision in I.R. Coelho are as follows:

"129. Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review. All these would be redundant if the legislative, executive and judicial powers are vested in one organ. Therefore, the duty to decide whether the limits have been transgressed has been placed on the judiciary.

130. Realising that it is necessary to secure the enforcement of the fundamental rights, power for such enforcement has been vested by the Constitution in the Supreme Court and the High Courts. Judicial review is an essential feature of the Constitution. It gives practical content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. It may be noted that the mere fact that equality, which is a part of the basic structure, can be excluded for a limited purpose, to protect certain kinds of laws, does not prevent it from being part of the basic structure. Therefore, it follows that in considering whether any particular feature of the Constitution is part of the basic structure--rule of law, separation of powers--the fact that limited exceptions are made for limited purposes, to protect certain kind of laws, does not mean that it is not part of the basic structure."

In conclusion, it was held thus:

147...The point to be noted is that the application of a standard is an important exercise required to be undertaken by the court in applying the basic structure doctrine and that has also to be done by the Courts and not by the Prescribed Authorities under Article 368. The existence of the power of Parliament to amend the Constitution at will with requisite voting strength, so as to make any kind of laws that excludes Part III including power of judicial review under Article 32 is incompatible with the basic structure doctrine. Therefore, such an exercise if challenged, has to be tested on the touchstone of basic structure as reflected in Article 21 read with Article 14 and Article 19, Article 15 and the principles thereunder."

The constitutional position.

The evolution of constitutional doctrine in India has led to judicial review under Articles 32 and 226 of the Constitution being recognised as an integral and basic feature of the Constitution. Basic features of the Constitution lie outside the purview of the amending power. The constitutional entitlement to seek judicial review cannot be abrogated by legislative enactment. But our constitutional jurisprudence recognizes that Tribunals in various aspects of regulatory governance have become an unavoidable necessity in India as in other jurisdictions founded on the common law doctrine of the rule of law. Tribunals are intended to fulfill a felt necessity of ensuring specialized justice : specialized in the sense of being manned by adjudicatory personnel whose qualifications and experience bring capabilities required to handle the specialized nature of dispute resolution in a particular area. This element, in our country, is coupled with the enormous litigative burden upon the High Courts which has been noticed by the Law Commission. The creation of Tribunals was envisaged to provide an expeditious resolution of disputes by reducing the burden of the backlog from the High Courts. But the preservation of judicial independence is a concern. The source and manner of recruitment, qualifications of personnel, insulation guarantees for judges and the mode of administrative control affect the independence of a Tribunal. The legislature which has the legislative competence to create and define the jurisdiction of Courts is entitled to legislate to form a Tribunal. Tribunals, however, perform a supplementary as opposed to a substitutive role. Legislation, which confers jurisdiction on a Tribunal, is answerable to constitutional norms. The legislation, in order to meet the test of constitutionality, cannot abrogate recourse to Article 226 of the Constitution to the High Courts and to Article 32 which provides access to the Supreme Court for the enforcement of rights conferred by Part III of the Constitution. The exclusion of Article 32 and of Article 226 by legislation is not constitutionally permissible because that would offend a basic and integral feature of the Constitution. Equally, for Tribunals to perform their function as viable adjudicatory bodies, constitutional doctrine recognizes that a Tribunal, such as an Administrative Tribunal, constituted under the Administrative Tribunals Act, 1985 will act as the only court of first instance in the areas of law for which it has been constituted. Consequently, it would not be open to a litigant to directly approach the High Court even in a case where the vires of legislation or subordinate legislation is challenged, except in a case where the validity of the legislation constituting the Tribunal itself is challenged.

The provisions of the Armed Forces Tribunal Act, 2007 indicate that Parliament, while enacting the legislation, was conscious of the constitutional status ascribed to the power of judicial review of the Supreme Court and of the High Court. Section 14(1) contains a stipulation that from the appointed day, the Tribunal shall exercise 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. The exception must be given its plain meaning and effect. By it, Parliament has evinced a legislative intent that the jurisdiction, powers and authority which have to be exercised by the Tribunal in relation to all service matters is such as was exercisable by all courts before the appointed date, except for the Supreme Court and High Courts under Articles 226 and 277 of the Constitution. Section 30(1) provides an appeal to the Supreme Court, subject to Section 31, against a final decision or order of the Tribunal while sub-section (2) provides for an appeal, as a matter of right, from an order or decision in the exercise of the jurisdiction of the Tribunal to punish for its contempt. Section 33 excludes the jurisdiction of the civil court to exercise such jurisdiction, power or authority which becomes exercisable by the Tribunal in relation to those service matters. Section 34 has provided for transfer of existing proceedings and suits including those pending before a High Court at the establishment of the Tribunal. The legislature has, therefore, consciously and carefully preserved the power of judicial review of the High Court and of the Supreme Court. Judicial review under Article 226 and Article 32 has not been abrogated. It could not have been wholly excluded, being a basic feature of the Constitution.

At the same time, the High Court must be cognizant of the principle that the Tribunal is a forum of first instance which has been constituted and created by the legislation. Consequently, the High Court would ordinarily defer to the existence of the Tribunal as a forum of first instance which has been created by the legislation. The exercise of jurisdiction under Article 226 of the Constitution is itself subject to self-imposed restraints under which the constitutional jurisdiction is not ordinarily exercised where an efficacious, and in this case a specialized, statutory alternative remedy has been created.

This perspective can be further emphasized by considering the provisions of Section 15 under which the Tribunal is to exercise from the appointed day all the jurisdiction, powers and authority exercisable under the Act in relation to an appeal against any order, decision finding or sentence passed by a court-martial or a matter which is connected or incidental. Sub-section (2) of Section 15 provides an appeal to the Tribunal to a person aggrieved by an order, decision, finding or sentence passed by a court-martial. Sub-section (3) empowers the Tribunal to enlarge a person, accused of an offence and in military custody, on bail unless there is reasonable ground for believing that he is guilty of an offence punishable with death or imprisonment for life. Sub-section (4) empowers the Tribunal to allow an appeal against a conviction by a court-martial where (i) the finding is not legally sustainable; (ii) the finding involves a wrong decision on a question of law; or (iii) a miscarriage of justice has resulted as a result of a material irregularity in the course of trial by the Tribunal. Sub-section (6) of Section 15 confers extensive powers upon the Tribunal to substitute for the findings of the court-martial, a finding of guilt for any other offence for which the offender could have been lawfully found guilty by the court-martial and to pass a sentence afresh. If the sentence is found to be excessive, illegal or unjust, the Tribunal may remit the whole or any part of the sentence, mitigate the punishment, commute it to any lesser punishment or enhance the sentence awarded by the court-martial. The Tribunal has the power to release an appellant on parole, suspend the sentence of an imprisonment and to pass any other order as it may think appropriate. This wide power, which has been conferred upon the Tribunal in relation to an appeal against an order, decision, finding or sentence of a court-martial, is an additional reason for the High Court to approach the invocation of its jurisdiction under Article 226 of the Constitution with a high degree of restraint. Equally, the remedy of an appeal which is provided against a final decision or order of the Tribunal to the Supreme Court is a circumstance which must have an important bearing on the circumspection and restraint with which the power under Article 226 of the Constitution should be exercised.

But, it is trite law that there is a fundamental difference between the exclusion of judicial review on the one hand and the principle on the other hand, that though the power of judicial review by the superior courts cannot be abrogated, it has to be exercised with a degree of restraint. The exercise of restraint is a self-imposed norm which Judges of the High Court follow in the exercise of the jurisdiction under Article 226 of the Constitution. Self-restraint is a limitation on the exercise of the power and is not a denial of the existence of the power.

Consequently, judicial review by the High Court under Article 226 of the Constitution does not stand excluded by the provisions of the Armed Forces Tribunal Act, 2007. Judicial review under Article 226 of the Constitution could not have been excluded, being a basic and integral feature of the Constitution. On a plain textual interpretation of the legislative provisions contained in the Act, it has not been excluded. Equally, we emphasize the need for restraint and circumspection in exercising that power particularly where the Tribunal is constituted as a court of first instance in service matters under Section 14 and a forum of appeal in matters pertaining to court-martials under Section 15. Moreover, as the Supreme Court emphasized in its judgment in Cicily Kallarackal Vs. Vehicle Factory45, while interpreting the provisions of the Consumer Protection Act, 1986, it is not appropriate for the High Court to entertain a writ petition under Article 226 of the Constitution where a statutory remedy is provided and lies to the Supreme Court under the provisions of the Act.

The Armed Forces Tribunal, under Section 14(1) has been vested with the exercise of jurisdiction, powers and authority in relation to all service matters. The definition of 'service matters' in Section 3(o) excludes certain categories. Similarly, under the proviso to sub-section (1) of Section 30, no appeal is envisaged against an interlocutory order of the Tribunal to the Supreme Court. Where a particular matter does not fulfill the description of service matters within the meaning of Section 3(o), the original jurisdiction of the Tribunal as a forum of first instance would not be available. Similarly, where an interlocutory order of the Tribunal is sought to be challenged, an appellate remedy is not provided before the Supreme Court under Section 30. But it would not be possible to accept the submission of the respondents that apart from a challenge to the constitutional validity of the provisions of the Act, the only two other instances where the jurisdiction of the High Court under Article 226 can be invoked is in the case of a matter which does not fulfill the description of a service matter under Section 3(o) and where an interlocutory order has been passed by the Tribunal which is not subject to an appeal under Section 30. Where a matter is not a service matter under Section 3(o), the power of judicial review under Article 226 of the Constitution is a fortiori available as it is available similarly to challenge an interlocutory order of the Tribunal which is not amenable to the appellate jurisdiction of the Supreme Court under Section 30. But these provisions do not exclude, either expressly or by necessary implication, the fundamental power of judicial review under Article 226 which is vested in the High Court and is recognised to be a basic and integral feature of the Constitution.

Article 136 (2) and Article 227(4)

Article 136 (2) of the Constitution provides as follows:

" (2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces."

In similar terms, are the provisions of Article 227(4):

"(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces."

The Constituent Assembly Debates provide a meaningful source for analysing the reasons which led to the adoption of Article 136 (2) and Article 227 (4) in its present form.

(a) Background

The Draft Constitution, which was originally prepared by the Constitutional Advisor in October 1947 and the subsequent Draft Constitution which was prepared by the Drafting Committee, as submitted to the President of the Constituent Assembly on 21 February 1948, did not contain a provision analogous to Article 136 (2) or Article 227 (4) in its present form. Article 112 of the Draft Constitution of 1948 was the forerunner of the present day Article 136 (1) while clauses (1), (2) and (3) of Article 203 of the Draft Constitution of 1948 were similar to clauses (1), (2) and (3) of Article 227 of the Constitution.

Article 112 of the Draft Constitution provided as follows:

"112. The Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree or final order in any cause or matter, passed or made by any court or tribunal in the territory of India except the States for the time being specified in Part III of the First Schedule, in cases where the provisions of article 110 or article 111 of this Constitution do no apply."

Article 203 of the Draft Constitution read as follows:

"203. (1) Every High Court shall have superintendence over all courts throughout the territories in relation to which it exercises jurisdiction.

(2) The High Court may-

(a) call for returns from such courts;

(b) direct the transfer of any suit or appeal from any such court to any other court of equal or superior jurisdiction, or withdraw such suit or appeal from any such court to itself;

(c) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

(d) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practicing therein;

Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) of this article shall not be inconsistent with the provisions of any law for the time being in force, and shall require the previous approval of the Governor."

(b) Constituent Assembly proceedings

During the course of the proceedings of the Constituent Assembly on 16 October 1949, Shri T T Krishnamachari moved amendments for the addition of clause (2) to Article 112 and clause (4) to Article 203 in the following terms:

"(2) Nothing in clause (1) of this article shall apply to any judgment, determination, sentence, or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.

(4) Nothing in this article shall be deemed to extend the powers of superintendence of a High Court over any court or tribunal constituted by or under any law relating to the Armed Forces."46

Both amendments were debated together. Members of the Constituent Assembly, as their speeches would indicate, conceived that both the amendments had a common purpose. While moving the amendments on 16 October 1949, Shri T T Krishnamachari stated as follows:

"... I understand that this follows the practice that now obtains in the U.K. where courts do not interfere with the decisions of the court-martial. I would at once confess that this matter, which escaped our attention at the time this article was framed and put before the House, has now been brought to our notice by the Defence Department, who have convinced us that a provision of this nature which obtains currency in other countries should also find a place in our Constitution."47

Among the objections to the amendment, there were two which would necessitate mention here:

(i) Prof Shibban Lal Saksena submitted that persons sentenced to death by court-martial should be able to appeal to the Supreme Court and the Supreme Court should have jurisdiction to entertain an appeal against any order made by a court-martial48;

(ii) Shri R K Sidhwa and Pandit Thakur Das Bhargava submitted that a sizeable number of disputes relating to army personnel also involve civilians and they should not be deprived of the jurisdiction of the Supreme Court.

(c) Dr B R Ambedkar's speech

Dr B R Ambedkar justified the proposed amendments on the ground of the need to maintain military discipline. Significantly, Dr Ambedkar assured the critics that the addition of clauses (2) and (4) respectively to Articles 112 and 203 did not provide a complete immunity for army courts and tribunals from the judicial and adjudicatory authority of the Supreme Court and the High Courts. Dr Ambedkar stated that though civil courts of superior authority did possess, in theory, the jurisdiction to modify or set aside an order made by a military court or tribunal, in practice in Britain, they had refrained from exercising that power. Judicial restraint was important for strengthening institutions of the armed forces. In other words, in Dr Ambedkar's perspective, the issue was critical for maintaining military discipline. However, Dr Ambedkar postulated that clause (2) of Article 112 and clause (4) of Article 203 did not altogether take away the powers of the Supreme Court or of the High Courts and there should be exceptional cases for the exercise of judicial review from and for the purpose of interference with an order of a military court or tribunal. Those cases were: (i) where the issue was whether the exercise of jurisdiction is within the ambit of the law which creates and constitutes such a court or tribunal; and (ii) where the issue was whether there was any evidence at all in support of a particular finding. Dr. Ambedkar stated that courts could issue prerogative writs "in order to examine whether the proceedings of the court martial against 'a member of the armed forces' are carried on under any particular law made by Parliament or they were arbitrary in character."

These remarks in the debates of the Constituent Assembly by Dr B R Ambedkar are of critical significance, and are extracted herein below:

"The Honourable Dr. B.R. Ambedkar:

Mr. President Sir, in view of the observations made by my honourable Friend, Prof. Shibban Lal Saksena, it has become incumbent upon me to say something in relation to the proposed article moved by my honourable Friend, Mr. T.T. Krishnamachari. It is quite true that on the occasion when we considered article 112 and the amendment moved by my honourable Friend, Prof. Shibban Lal Saksena, I did say that under article 112 there would be jurisdiction in the Supreme Court to entertain an appeal against any order made by a Court-martial. Theoretically that proposition is still correct and there is no doubt about it in my mind, but what I forgot to say is this: That according to the rulings of our High Courts as well as the rulings of the British courts including those of the Privy Council, it has been a well recognised principle that civil courts, although they have jurisdiction under the statute will not exercise that jurisdiction in order to disturb any finding or decision given or order made by the Court-martial. I do not wish to go into the reason why the civil courts of superior authority, which notwithstanding the fact that they have this jurisdiction have said that they will not exercise that jurisdiction; but the fact is there and I should have thought that if our courts in India follow the same decision which has been given by British courts - the House of Lords, the King's Bench Division as well as the Privy Council and if I may say so also the decision given by our Federal Court in two or three cases which were adjudicated upon by them - there would be no necessity for clause (2); but unfortunately the Defence Ministry feels that such an important matter ought not be left in a condition of doubt and that there should be a statutory provision declaring that none of the superior civil courts whether it is a High Court or the Supreme Court shall exercise such jurisdiction as against a court or tribunal constituted under any law relating to the Armed Forces.

This question is not merely a theoretical question but is a question of great practical moment because it involves the discipline of Armed Forces. If there is anything with regard to the armed forces, it is the necessity of maintaining discipline. The Defence Ministry feels that if a member of the Armed Forces can look up either to the Supreme Court or to the High Court for redress against any decision which has been taken by a court or tribunal constituted for the purpose of maintaining discipline in the armed forces, discipline would vanish. I must say that that is an argument against which there is no reply. That is why clause (2) has been added in Article 112 by this particular amendment and a similar provision is made in the provisions relating to the powers of superintendence of High Courts. That is my justification why it is now proposed to put in clause (2) of article 112.

I should, however, like to say this that clause (2) does not altogether take away the powers of the Supreme Court or the High Court. The law does not leave any member of armed forces entirely to the mercy of the tribunal constituted under the particular law. For, notwithstanding clause (2) of the article 112, it would still be open to the Supreme Court or to the High Court to exercise jurisdiction, if the court martial has exceeded the jurisdiction which has been given to it or the power conferred upon it by the law relating to armed forces. It will be open to the Supreme Court as well as the High Court to examine the question whether the exercise of jurisdiction is within the ambit of the law which creates and constitutes this court or tribunal. Secondly, if the court-martial were to give a finding without any evidence, then, again, it will be open to the Supreme Court as well as the High Court to entertain an appeal in order to find out whether there is evidence. Of course, it would not be open to High Court or the Supreme Court to consider whether there has been enough evidence. That is a matter which is outside the jurisdiction of either of these Courts. Whether there is evidence or not, that is a matter which they could entertain. Similarly, if I may say so, it would be open for a member of the armed forces to appeal to the courts for the purpose of issuing prerogative writs in order to examine whether the proceedings of the court martial against him are carried on under any particular law made by Parliament or whether they were arbitrary in character. Therefore, in my opinion, this article, having regard to the difficulties raised by the Defence Ministry is a necessary article. It really does not do anything more but give a statutory recognition to a rule that is already prevalent and which is recognised by all superior courts."49 (emphasis supplied).

The motions for amending the two provisions were subsequently adopted by the Constituent Assembly and clause (2) to Article 112 and clause (4) of Article 103 were added. Article 112 of the Draft constitution of 1948 was renumbered as Article 136 and Article 203 was renumbered as Article 227 in the Draft Constitution as revised by the Drafting Committee and submitted to the President of the Constituent Assembly on 3 November 1949. The revised Draft of 1949 was later adopted in the Constitution of India on 26 November 1949.

The debates of the Constituent Assembly would indicate that, in theory, civil courts of superior authority could, in the U.K., entertain complaints against and review the decisions of military courts or tribunals. However, it was a well-established judicial practice that superior courts in recognition of the need to preserve military discipline, exercised that jurisdiction sparingly. The additions in the Draft Constitution of clause (2) to Article 112 and clause (4) to Article 203 afforded a statutory recognition to a prevalent judicial practice. Significantly, those clauses were not construed to mean a complete immunity for courts or tribunals constituted under armed forces legislation from judicial review, nor did those provisions mean an ouster or abrogation of the power of judicial review which was vested in the High Courts and in the Supreme Court. Dr Ambedkar enunciated cases where the superior courts could exercise the power of judicial review against decisions of the courts and tribunals constituted under legislation relating to the armed forces and also issue prerogative writs. The Constituent Assembly, while it adopted those two clauses, did so in the backdrop of the two precepts which Dr Ambedkar enunciated. The first was the need to maintain discipline among the armed forces. The need to ensure discipline meant that judicial review should be exercised sparingly. Secondly, judicial review was not abrogated nor was there a conferment of an absolute immunity to the courts and tribunals constituted under legislation for the armed forces from judicial review.

Conclusion

(i) Our jurisprudence in over six decades since the adoption of the Constitution has evolved a clear, categoric and unambiguous recognition of the importance of judicial review by the Supreme Court under Article 32 and by the High Courts under Article 226. Judicial review is an indispensable safeguard to the preservation of liberty, freedom and to the realization of rights founded on the rule of law. Without constitutionally entrenched remedies, the realisation of fundamental constitutional rights would be illusory or, as Dr B R Ambedkar described it, a mere 'pious declaration':

"It is the remedy that makes a right real. If there is no remedy, there is no right of all, and I am therefore not prepared to burden the Constitution with a number of pious declarations which may sound as glittering generalities but for which the Constitution makes no provision by way of a remedy. It is much better to be limited in the scope of our rights and to make them real by enunciating remedies than to have a lot of pious wishes embodied in the Constitution. I am very glad that this House has seen that the remedies that we have provided constitute a fundamental part of this Constitution..."50

(ii) The power of judicial review of the Supreme Court and of the High Courts is firmly entrenched as a basic feature of the Constitution which lies beyond the amending power. Even more so, ordinary legislation cannot abrogate the constitutional power of judicial review that is vested in the Supreme Court under Article 32 and in the High Courts under Article 226;

(iii) The Armed Forces Tribunal Act, 2007 does not contain, either expressly or by necessary implication, any exclusion of the power of judicial review that is conferred upon the Supreme Court under Article 32 or upon the High Courts under Article 226. The legislation in fact contains a statutory recognition in Section 14 that the jurisdiction which is conferred upon the Armed Forces Tribunal is a jurisdiction in relation to service matters as defined in Section 3(o) as was exercisable by all courts and tribunals immediately before the appointed day, save and except the jurisdiction exercisable by the Supreme Court and the High Courts;

(iv) Having said this, it needs to be emphasised that the existence of jurisdiction and the nature of its exercise have distinct connotations in constitutional law. The Armed Forces Tribunal is constituted by legislation which provides for a specialized and efficacious administration of justice in matters falling within its jurisdiction under the provisions of the Act. This is coupled with the need to maintain discipline in the Armed Forces;

(v) The Armed Forces Tribunal is a court of first instance and ordinarily, matters which fall within the purview of its jurisdiction have to proceed for adjudication before the Tribunal and the Tribunal alone. Against the decision of the Tribunal, there is a statutory remedy of an appeal which is provided under Sections 30 and 31 to the Supreme Court;

(vi) Since a statutory remedy of an appeal is provided, the principles which are well established for the exercise of the jurisdiction under Article 226, would warrant that the High Court should be circumspect and careful while determining as to whether any case for the exercise of jurisdiction under Article 226 of the Constitution is made out;

(vii) The jurisdiction under Article 226 has not been abrogated as it could not have been, being a basic and essential feature of the Constitution.

In the circumstances, the questions of law which have been framed are answered in the aforesaid terms. The reference to the Full Bench shall accordingly stand disposed of. The writ petition shall now be placed before the Division Bench for disposal in the light of this judgment.

July 18, 2014

AHA

(Dr. D.Y. Chandrachud, C.J.)

(Dilip Gupta, J.)

(B. Amit Sthalekar, J.)

Judgment has been delivered today under sub-rule (2) of Rule 1 of Chapter VII of the Allahabad High Court Rules, 1952.

(Dr. D.Y. Chandrachud, C.J.)

(Dilip Gupta, J.)