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Synopsis

A full bench of the Delhi High Court on Wednesday held that High Courts have the jurisdiction and power of judicial review against the orders of the Armed Forces Tribunal (AFT).

The court was hearing a reference seeking clarity on whether the right of appeal against the final orders of the Armed Forces Tribunal excludes the remedy of judicial review by the high court in the exercise of its writ.

A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna had made the referral based on a difference of opinion between the two benches in two cases – Major Nishant Kaushik v. Union of India and Wing Commander Shyam Naithani v. Union of India, on the same issue.

In Major Nishant Kaushik’s case, a bench of the High Court had considered the tenets of the Armed Forces Tribunal Act, 2007, to hold that the appeal against an order of the Armed Forces Tribunal lies solely with the Supreme Court.

“The Court while dismissing the petition, had concurred with the observations in Shyam Naithani (supra), recognizing the remedy of Judicial Review against the orders of the Armed Forces Tribunal under the writ jurisdiction of a High Court”, the full judge bench observed.

The full bench of Justices Manmohan, Suresh Kumar Kait, and Neena Bansal Krishna held that the writ jurisdiction of High Courts for judicial review is not completely ousted by the statutory appeal mechanism provided under Section 30 and 31 of the Armed Forces Tribunal Act, 2007.

The court stated that the issue had already been decided by the Apex Court in Balkrishna Ram v. Union of India and Anr. (2020), wherein it was held that appeals of the AFT could be decided by the High Courts.

“That the writ jurisdiction of the High Courts for Judicial Review is not completely ousted by the statutory Appeal mechanism provided under Sections 30 and 31 of the Act, 2007 is no longer res integra, in view of the decision of the Supreme Court in Balkrishna Ram vs Union of India and Anr. (2020) 2 SCC 442”, the court said.

The court ruled, “Thus, the conclusion is monosemus and there is no difference of opinion in Shyam Naithani (supra) and in Major Nishant Kaushik (supra) as both the decisions reiterate and acknowledge the jurisdiction of the High Court for Judicial Review against the Orders of the Armed Forces Tribunal”.

Accordingly, noting that the reference had been answered, the court listed the matter before the Roster bench for hearing on February 9.

Case Title: Amar Singh Ex NB Sub & Ors. v. Union of India & Ors. (a batch of connected petitions)

Statue: The Armed Forces Tribunal Act, 2007.