This article is written by Teledevara Suryamegha, pursuing a Executive Certificate Course in Introduction to Legal Drafting from LawSikho.
Introduction
The Armed Forces Tribunal Act was enacted with an aim to ensure a prompt trial of disputes, complaints and settling matters in relation to enrolment, appointment, commission and the terms of the service of an individual subject to the Air Force Act 1950, Navy Act, 1957 and the Army Act, 1950 by the Armed Forces Tribunal. The Act is applicable to the individuals within the preview of the aforementioned acts and as well as the retired individuals who incorporate their replacements, dependants and beneficiaries, in relation to the service matters. The Tribunal as per the provision of the Act is a quasi-judicial body established to resolve the issues arising out of service and disciplinary matters, especially for the individuals working in Army, Air Force and Navy. The tribunal has the power to pass orders and judgements. Clearly, its functions are like that of the Central Administrative Tribunal.
Table of Contents
Section 30 and 31 of the Act
The crucial sections at issue were Sections 30 and 31, which provided for appeals from the orders of the Tribunal. Section 30 states:
An individual has a right to appeal against the order passed by the tribunal subject to the provisions of section 31 of the Act. The section also states that the individual cannot claim the right to appeal if an order is passed as per section 19 of the Act.
Section 31 likewise states:
An individual has to obtain a special permission to be heard, by filing an appeal before the Hon’ble Supreme court. The court shall entertain such appeals unless it is certified by the tribunal that the question of law in the appeal needs further interpretation of law or involves general public importance. Therefore it can be understood that Sections 30 and 31 of the Act gives the individual right of Appeal.
The Hon’ble Supreme Court in Union of India Vs. Brigadier P.S. Gill has analysed the method for preferring an appeal against a final judgement or order passed by the Tribunal to the Supreme Court. The court also held that the parties have to obtain the special permission to challenge the order passed by the tribunal in the superior court. The question one must focus on is whether the aggrieved party under the act has the right to appeal before the Hon’ble Supreme Court without following the procedure prescribed under the Act. While analysing the procedural necessities for filing an appeal to the Hon’ble Supreme Court the court held as under;”
A typical inquiry of law concerning the viability of an allure under the steady gaze of this Court against an official conclusion and additionally request of the Armed Forces Tribunal emerges for thought in these two offers that imply to have been documented under Section 30 of the Armed Forces Tribunal Act, 2007.” The inquiry accurately is whether an abused gathering can record an allure against any such ultimate choice or request of the Tribunal under Section 30 of the Act previously mentioned under the steady gaze of this Court without taking the hotel to the method recommended under Section 31 thereof. In as much as Section 31 accommodates an appeal to this Court either with the special permission of the Tribunal or with the Court, no outright right of appeal against even an order or decision is accessible to the bothered party aside from in situations where the request passed by the Tribunal is in exercise of its jurisdiction to conduct trial with respect to contempt cases.
A plain perusal of Section 30 would show that similar beginnings with the articulation “subject to the arrangement of Section 31”. Given their conventional importance there is no refuting that an appeal will deceive this Court just as per the arrangements of Section 31. It is likewise clear from a plain perusing of sub-area (2) of Section 30 (supra) that dissimilar to other decisions and final orders of the Tribunal, those passed in exercise of the Tribunal’s purview to rebuff for scorn are appealable starting at right. The Parliament has made an unmistakable qualification between situations where an appeal lies as an issue of right and others where it lies subject to the arrangements of Section 31. Section 31 of the Act of Act explicitly accommodates an appeal to the Supreme Court yet specifies two unmistakable courses for such an appeal.
The principal course to this Court is endorsed by the Tribunal giving leave to record such an appeal. This suggests that Section 31 doesn’t make a vested, indefeasible or total right of recording an appeal to this Court against a last request or choice of the Tribunal to this Court. Such an appeal must be gone before by the leave of the Tribunal and such leave should thus be gone before by an authentication by the Tribunal that a state of law of overall population significance is associated with the appeal. The second and the only other course to get to this Court is additionally found in Section 31(1) itself.
The articulation “or it appears to the Supreme Court that the fact is one which should be considered by that Court” enables this Court to allow the documenting of an appeal against any such ultimate conclusion or request of the Tribunal. A conjoint perusing of Sections 30 and 31 can prompt just a single end viz. there is no vested right of appeal against a last request or choice of the Tribunal to this Court other than those falling under Section 30(2) of the Act. The main mode to raise the issue to this Court in request is either by method of testament obtained from the Tribunal that chose the issue or by acquiring leave of this Court under Section 31 for recording an appeal contingent on whether this Court considers the direct engagement with the case toward be one that should be considered by this Court.
Armed forces Act – exception to the Basic Structure
In a significant help to safeguard litigants, the Supreme Court has re-established the option to challenge decisions of the Armed Forces Tribunal (AFT) in the high courts. The Hon’ble Supreme Court decided in 2015 that high courts must not practice writ purview over AFT requests since the cure of an immediate appeal to the SC was given in the AFT Act. The Supreme Court held in Union of India vs Major General Shri Kant Sharma that Sections 30 and 31 of the aforementioned 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 is part of the basic structure, the Supreme Court expressly denied that to be the basis of its decision.
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. It is obvious from the text of the Act that purview of the Tribunal established under the Armed Forces Tribunal Act is in replacement of the jurisdiction of Civil Court and the High Court . But there is a serious problem here. And that is the judgment of L. Chandra Kumar. In that case, as is well-known, a seven-judge bench of the Supreme Court held that Tribunals, as they were constituted and functioning, could act complementary to the High Courts, but not as substitutes. 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. Alluding to an order passed by a seven-judge Bench, the SC saw on account of Balkrishna Ram versus Union of India that the writ jurisdiction of high courts over tribunals can’t be removed by an administrative or protected alteration and the 2015 judgment by a Bench of two appointed authorities can’t overrule the law previously set down. The SC has likewise held that the cure of an immediate appeal from the AFT to the SC would be “very troublesome and past the money related reach of a conventional disputant”.
The 2015 choice had essentially delivered disputants remedy-less since according to the AFT Act an appeal to the SC lies just in restricted situations where “a state of law of overall population significance” is included. Therefore, the requests had for all intents and purposes changed over the AFT into the first and last court for serving and resigned military staff, while regular citizen representatives and retired people could challenge decisions of the Central Administrative Tribunal (CAT) in the HC and afterward in SC.
Points to be included while drafting an Appeal
- Whether appeal lies
- Whether any claim had remained to be raised – fresh plea
- Widest possible ground
- Alternative plea, without prejudice grounds
- Grounds should not be argumentative
- Statement of facts
- Who has to file and sign the appeal
- Who will be the respondent
- Application for stay
- Reply to show cause notice
Conclusion
Regardless, whatever the merits of the bizarre circumstances, different issues with the judgment remain. The Supreme Court has denied individuals of the armed forces a significant constitutional remedy against the infringement of their privileges. It’s legitimization for doing as such, I would propose with deference, is unconvincing.
References
- https://indconlawphil.wordpress.com/2015/03/14/carving-out-an-exception-to-the-basic-structure-the-supreme-courts-judgment-on-judicial-review-and-the-armed-forces-tribunal/
- https://www.tribuneindia.com/news/punjab/sc-restores-hc-jurisdiction-over-aft-orders-24900
- https://www.moneylife.in/article/sc-decision-on-aft-curtails-right-to-effective-justice-for-defense-personnel-veterans/40787.html
- https://indconlawphil.wordpress.com/2015/03/14/carving-out-an-exception-to-the-basic-structure-the-supreme-courts-judgment-on-judicial-review-and-the-armed-forces-tribunal/
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