Carving out an exception to the basic structure?: The Supreme Court’s judgment on Judicial Review and the Armed Forces Tribunal

On March 11, the Supreme Court held in Union of India vs Major General Shri Kant Sharma that Sections 30 and 31 of the Armed Forces Tribunal Act effectively excluded the jurisdiction of the High Courts to hear petitions challenging orders of the Armed Forces Tribunal. This judgment is worth a close scrutiny, because while it seems to carve out an exception to the well-accepted rule that judicial review under Articles 226 and 227 of the Constitution is part of the basic structure, the Supreme Court expressly denied that to be the basis of its decision.

The Armed Forces Tribunal Act is a law dealing with the adjudication of service-related disputes for members of the Armed Forces, as well as court martials, and matters incident thereto. The Act provides for the establishment of an Armed Forces Tribunal to adjudicate service matters with respect to the armed forces. Clearly, its functions are similar to that of the Central Administrative Tribunal (its composition is not, but since that aspect is not addressed by the judgment, we will not discuss it here).

The crucial sections at issue were Sections 30 and 31, which provided for appeals from the orders of the Tribunal. Section 30 states:

“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).”

Section 31 likewise states:

“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.”

Sections 30 and 31, therefore, lay down the procedure for appealing an order of the Armed Forces Tribunal to the Supreme Court. Parallel to this, Section 33 excludes the jurisdiction of civil courts, and Section 34 provides the transfer of all pending cases (including cases in the High Courts) to the Tribunal, after the commencement of the Tribunal.

The question before the Court was whether Sections 30 and 31 barred the jurisdiction of the High Courts from hearing petitions (under 226/227) against the orders of the Armed Forces Tribunal. The Court began by pointing out certain specific provisions of the Constitution. Under Article 33 of the Constitution, Parliament may modify the operation of Part III to the armed forces. Article 227(4) of the Constitution, part of the provision dealing with the superintendence of the High Courts, provides that “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.” Article 136(2), part of the provision dealing with special leave to appeal to the Supreme Court, provides that “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.”

At this point, the following argument seems to be there to be made: admittedly, judicial review under Articles 226 and 227, and under Article 32, is part of the basic structure of the Constitution. But the Constitution itself, through various provisions, carves out an exception in the cases of the armed forces, where the scope of judicial review is to be regulated by statute (Articles 227(4) and 136(2)). Consequently, Parliament may, by law, bar the jurisdiction of the High Court to hear appeals from orders passed by the Armed Forces Tribunal.

Such an argument is open to objection. It also raises the fascinating question of whether an original constitutional provision can be unconstitutional because it violates the basic structure (if judicial review is part of the basic structure, than how can 227(4) and 136(2) be consistent with that?)). The Court, however, did not make this argument at all. Instead, it first affirmed the proposition that the Armed Forces Tribunal Act cannot take away the jurisdiction of the High Court under Articles 226 and 227 (paragraph 25).

The Court then cited a number of precedents for the proposition that although the jurisdiction of the High Court could not be taken away by any statute, in deciding whether or not to exercise its jurisdiction, the High Court must take into account the legislative intention behind the statute in question. Citing the prior case of Nivedita Sharma vs Cellular Operators Association of India, the Court observed that “when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.” (paragraph 25)

But what was the statutory forum in the present case? Here is where the judgment becomes somewhat murky. Paragraph 33 of the judgment is preceded by a heading called “Statutory remedy“. Here, the Court cited the case Union of India vs Brigadier P.S. Singh Gill, and extracted a lengthy set of paragraph that detailed the appeals procedure under Sections 30 and 31 of the Armed Forces Tribunal Act. But Sections 30 and 31, as we saw, provide for an appeal to the Supreme Court. Surely the provision of an appeal to the Supreme Court cannot be the “alternative statutory forum” to the jurisdiction of the High Courts! That would fly in the fact of the Chandra Kumar judgment, the entire history of the Tribunals Cases and, indeed, the fundamental proposition that Articles 226/227 are part of the basic structure.

But then what is the alternative statutory forum? The only possible answer has to be: the Armed Forces Tribunal itself. This, indeed, is what the Court implied earlier in the judgment. In paragraph 14, it stated that: “it is clear from the scheme of the Act that jurisdiction of the Tribunal constituted under the Armed Forces Tribunal Act is in substitution of the jurisdiction of Civil Court and the High Court.

But there is a serious problem here. And that is the L. Chandra Kumar judgment. In that case, as is well-known, a seven-judge bench of the Supreme Court held that Tribunals, as they were constituted an functioning, could act complementary to the High Courts, but not as substitutes. This was because:

“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 Articles 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.”

This has been a constant position of law. In its recent judgment, striking down the National Tax Tribunals, the Supreme Court based its entire analysis on a detailed demonstration of how the Tribunals lacked the essential qualities of the Courts (judicial independence etc.), that would allow them to serve as effective substitutes.

The Court’s judgment, therefore, is question-begging. It takes the existence of the Armed Forces Tribunal to be evidence of an “alternative statutory forum” that is a “substitute” for the High Courts. On that basis, it holds that while the jurisdiction of the High Courts cannot be ousted, it should not exercise its jurisdiction because of the existence of the alternative forum! As I have endeavoured to show, in my opinion, both steps of the argument are ill-founded, and in conflict with established precedent. Furthermore, why wouldn’t exactly the same reasoning apply to the Central Administrative Tribunal? What was needed in this case, to complete the argument was a detailed analysis showing that the Armed Forces Tribunal, in its composition, structure and powers and functions, was an effective substitute for the High Court. This, however, was not done.

The Court buttressed its judgment by pointing to a possible “anomalous situation” that would be created by permitting the High Courts to exercise their jurisdiction. It observed, in para 37:

“If any person aggrieved by the order of the Tribunal, moves before the High Court under Article 226 and the High Court entertains the petition and passes a judgment or order, the person who may be aggrieved against both the orders passed by the Armed Forces Tribunal and the High Court, cannot challenge both the orders in one joint appeal. The aggrieved person may file leave to appeal under Article 136 of the Constitution against the judgment passed by the High Court but in view of the bar of jurisdiction by clause (2) of Article 136, this Court cannot entertain appeal against the order of the Armed Forces Tribunal. Once, the High Court entertains a petition under Article 226 of the Constitution against the order of Armed Forces Tribunal and decides the matter, the person who thus approached the High Court, will also be precluded from filing an appeal under Section 30 with leave to appeal under Section 31 of the Act against the order of the Armed Forces Tribunal as he cannot challenge the order passed by the High Court under Article 226 of the Constitution under Section 30 read with Section 31 of the Act. Thereby, there is a chance of anomalous situation.”

But surely, if the Armed Forces Tribunal passes an order, which is assailed to the High Court under Article 226, and either party is aggrieved by the High Court’s decision, then the petition to the Supreme Court will be against the High Court’s order, and not the Tribunal’s? Why would there be a need to appeal the order of the Tribunal before the Supreme Court, when the most proximate decision is that of the High Court?

In any event, whatever the merits of the anomalous situations, the other objections to the judgment remain. The Supreme Court has deprived members of the armed forces an important constitutional remedy against the violation of their rights. It’s justification for doing so, I would suggest with respect, is unconvincing.



Filed under Judicial Review, Judicial Review

8 responses to “Carving out an exception to the basic structure?: The Supreme Court’s judgment on Judicial Review and the Armed Forces Tribunal

  1. Goutham

    I don’t think I agree with your analysis on this one Gautam.

    1. The notion of an original constitutional provision being unconstitutional (on basic structure grounds) isn’t fascinating (imho). It’s a contradiction in terms and shouldn’t be entertained even briefly. Surely, ALL parts of original constitutional text has to be taken to be constitutive of the basic structure. It would necessarily require apriori non-constitutional grounds / reasoning to assail the “validity” of original constitutional text.

    2. Taking point 1 further, L. Chandrakumar and co. held Art. 226/227 review to be part of basic structure in non-armed forces contexts. They said nothing about whether and how the carve outs in Art. 136(2) and 227(4) would affect the scope / width of basic structure judicial review in the armed forces context. So, it could be argued that L. Chandrakumar & Co left open the possibility that what the court was really saying was that “judicial review in all but armed forces cases” is basic structure.

    3. But as you say, the court in Union of India vs Major General Shri Kant Sharma doesn’t proceed on the basis the possibility in Point 2 above. In fact, it expressly concludes that judicial review is part of the basic structure even in armed forces contexts.

    4. However, keep in mind what is stated at page 3 of the judgment – “Further, according to learned counsel for the Union of India as none of the respondents raised any issue of jurisdiction of the Tribunal and it was essentially a challenge to the order of the Armed Forces Tribunal only on merits.” Usually, Art. 226/227 challenges to tribunal orders are not appeals on merits but only on reviews on jurisdictional grounds. So, there was nothing anomalous in the Court eventually concluding that Art. 226/227 review in these cases was bad (if indeed no jurisdictional challenges were raised before the High Courts)

    5. You may be right that the Supreme Court cannot be an alternative statutory forum in Art. 226 / 227 on a jurisdiction challenge. But it becomes irrelevant if Art. 226/227 were not an available option at all in view of Point 4 above. The legislative intent which the court refers to, was essentially the intent to provide an appeal on merits directly to the Supreme Court. The invocation of “alternative remedy” is slightly misleading (and perhaps even wrong) but the invocation of legislative intent to provide an appeal on merits to the SC seems right.

    6. Following from all the points above, there is a possibility of an anomaly. Assume the Tribunal decides against Party A. A files a review on jurisdictional grounds to the HC and loses. He will want to challenge the HC Order in an SLP. But he may also simultaneously want to pursue the statutory remedy (a merits challenge) against the Armed Forces Tribunal Order (which will survive due the A’s failure to dislodge it in the HC. Note – A cannot file an SLP against the AFT’s order due to the A.136(2) bar). As you may be aware, SLPs and Statuory appeals proceed a bit differently in the SC and may quite likely be posted before different benches. You could have one bench upholding the AFT’s order on merits but another hitting it on jurisdiction. This may be a minor risk since these matters generally tend to get tagged with each other, but at least in theory, an anomalous result might occur with one SC bench upholding the AFT order on a merits challenge while another striking down the HC order and thereby reopening the possibility of a jurisidiction challenge by way of a remand to the HC on the issue.

    • Thanks very much for the detailed comment.

      (1) I think that the existence of a basic structure doctrine (introduced retrospectively in Kesavananda, so to say) necessarily raises the possibility of unconstitutional constitutional provisions. The basic structure refers to the set of political/normative principles that underly and justify the Constitution. As Justice Chandrachud rightly pointed out, those principles must be drawn from the constitutional text. However, they exist at a higher level of abstraction than the text. Consequently, when we’re trying to abstract out the text to arrive at the basic features, we are making an assumption that the text itself possesses a unity of a sort that will allow us to glean those principles, which we can then use to explain the Constitutional *as a whole*. But that may not be so – the Constitution itself might contain contradictory provisions that point to different principles, and which cannot be reconciled.

      Interestingly, in Germany, where they also have something like a basic structure doctrine, the Constitutional Court has actually accepted the possibility of unconstitutional constitutional provisions. In the Southwest State Case, the Court observed:

      “That a constitutional provision itself may be null and void is not conceptually impossible just because it is a part of the constitution. There are constitutional principles that are so fundamental and so much an expression of a law that has precedence even over the constitution that they also bind the framers of the constitution, and other constitutional provisions that do not rank so high may be null and void because they contravene these principles.”

      I’ve tried to explore this specific issue before:

      (2) Yes, that I agree with. I’m not sure I’d be entirely convinced by the argument (I don’t know if its coherent to say that “x” is part of the basic structure BUT its reach is limited to specific classes of persons), but I think that would be an entirely fair argument to make.

      (3) Yes.

      (4) From my time on the service roster at the High Court, my recollection is that appeals from CAT orders were mostly on merits, and were decided on merits. Ditto for appeals from the ITAT to the High Court. I understand that as a technical principle of administrative law, the courts of record ought primarily to limit themselves to reviewing jurisdictional errors, but I’d say that at least in practice, the High Court does normally review on merits?

      In any event, while you’re right that the distinction is made by counsel in para 3, I wonder whether it actually forms part of the court’s reasoning. In my understanding, the Court draws a distinction between the existence of jurisdiction and its exercise, and says that the HC’s jurisdiction exists, but it ought not to exercise it. That argument, to me, seems to be agnostic between exercising jurisdiction for review of jurisdictional errors, and exercising jurisdiction to review merits. So I’m not sure whether the Court had relied upon the argument that you’re making – and therefore, what the implications of the judgment are.

      (5) But then is the argument that Articles 226/227 are part of the basic structure *only insofar as* review of jurisdictional errors are concerned? I’m a little uneasy with that argument, because it seems to run counter to the logic of the tribunals cases, which (according to me) is that you cannot deprive a petitioner of his day in *court*, i.e., an independent adjudicatory forum consisting of trained legal minds and with all procedural safeguards as regards evidence etc. It would seem to me that the National Tax Tribunal judgment, with its detailed analysis of the concept of judicial independence as part of the “Westminster system” points to the position that 226/227 review must include the whole gamut.

      (6) Actually, I don’t knowhow the SLP/appeals system works in the Supreme Court. 🙂 I’ll defer entirely on this one.

      Apologies if I’ve overlooked something really basic!

  2. I agree fully with Gautam. Having followed the AFT since inception, this is the most disastrous, and dare I say it, dangerous, decision to say the least. It effectively makes the AFT the first and the last court for litigants before it. Just to clarify to the first comment above, Article 227(4) has been completely misread by the Bench. The term ‘tribunal’ in Article 222(7) refers to courts-martial which becomes clear from a bare reading of the Constituent Assembly debates. The Constitution in Article 227(4) is not referring to Tribunals such as the AFT but to Courts-Martial.

    You may like to go through my detailed views on the decision on this link:

    You may also like to run through this newsreport on the subject:

  3. Rama Reddy

    The Concept of “Basic Structure of Constitution” is not only highly misconstrued but also self serving of the so-called Independent Judiciary. The sooner we get rid of this concept the better it will be for our democracy.

  4. Shivendra Singh

    Just read this thread and the comments. I agree that the analysis by the SC in this judgment is extremely unsatisfactory. Another opinion hurriedly written and pronounced due to an impending retirement! In my opinion, the Armed Forces Tribunal Act, 2007 is a direct instance of enlargement of the jurisdiction of the Supreme Court by the Parliament under Article 138(1) of the Constitution of India. Article 138(1) of the Constitution of India states that the Supreme Court shall have such further jurisdiction and powers with respect to any of the matters in the Union List as Parliament may by law confer [Entry 2 of the List I (Union List) reads as: Naval, Military and air forces; any other armed forces of the Union]. Thus, the relevant question before the Court, in my view, was whether the writ jurisdiction of the HCs under Article 226 of the Constitution of India was in any manner curtailed by the enlargement of jurisdiction of the Supreme Court by the enactment of the AFT Act, 2007? Sadly, the Supreme Court has not looked at the issue from this prism at all. Can the enlargement of the jurisdiction of the Supreme Court by the enactment of a law by the Parliament with respect to an Entry in List I limit or change the nature of jurisdiction exercised by the High Courts under Article 226? Despite this judgment, there is no clear answer to this question. And that’s quite unfortunate.

    • Thanks. I never thought of that aspect. My intuitive answer to the question would be no, but I’d have to think a lot more.

      • Shivendra Singh

        I looked into the issue again. And it’s quite complicated to be frank. It requires a close analysis of several entries of the Seventh Schedule of the Constitution of India. It is clearly a substantial question of law as to the interpretation of the Constitution, and should have been heard by a Constitution Bench. A very helpful judgment to properly understand the controversy is Jamshed N. Guzdar v. State of Maharashtra, (2005) 2 SCC 591. This judgment is an authority for two critical propositions. The first proposition is that the jurisdiction and powers of High Court are dealt with as a separate topic under Entry 11-A of List III, which was in Entry 3 of List II prior to 42nd Constitution Amendment Act. The general jurisdiction of the High Courts falls in “administration of justice”, i.e., under Entry 11-A in the Concurrent List. (See para. 37 of SCC) The second proposition is that both Parliament and State Legislatures can invest a High Court with general jurisdiction, including territorial and pecuniary jurisdiction, and also take away such jurisdiction and powers from the High Court by enacting appropriate legislation referable to “administration of justice” under List III Entry 11-A, except those powers and jurisdiction which are specifically conferred on High Courts under the Constitution (See para. 42 of SCC) . The judgment also specifically notes at para. 73 that the Constitution itself has conferred jurisdiction on High Courts, for instance, under Articles 226 and 227. The upshot of the above discussion is that the Armed Forces Tribunal Act, 2007 CANNOT take away the powers and jurisdiction conferred on High Courts under Articles 226 and 227 of the Constitution. Perhaps such a contention was not advanced before the Court. In view of this analysis, there is a strong case made out for contending that the instant judgment is per incuriam as it completely ignores a binding judgment of a Constitution Bench of the Court with respect to jurisdiction of High Courts. The proposition nos. (iii) and (iv) arrived at in Paragraph 34 by Justice Mukhopadhaya and Justice Ramana are simply wrong. Your intuitive answer to my question is absolutely right Gautam (in my humble opinion).

      • Shivendra, the decision is bad in law not only at a legal plane but also on practical levels. A Two Judge Bench should not have ventured into territory where there were ample pronouncements, more so when Sec 14 of the AFT Act itself preserves the writ jurisdiction of the High Courts. You may want to read my op-ed in the Indian Express on this very issue here:

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