Armed Forces Act: High Courts Have Jurisdiction & Power Of Judicial Review Against AFT Orders - Full Bench Of Delhi HC

The Delhi High Court has recently held that the High Courts have the jurisdiction and power of judicial review against the Orders of the Armed Forced Tribunal (AFT).

The Court was dealing with a reference on whether the right of appeal against the Final Orders of AFT under Sections 30 and 31 of the Armed Forces Act, 2007 excludes remedy of judicial review by the High Court in the exercise of its writ jurisdiction.

The Bench comprising Justice Manmohan, Justice Suresh Kumar Kait and Justice Neena Bansal Krishna observed, “… 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 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.”

The Bench also referred to the case of Major Nishant Kaushik v. Union of India and Ors. W.P. (C) 14385/2022 in which the Court considered the tenets of Sections 30 and 31 of the Act to hold that the statutory Appeal against an Order of the Armed Forces Tribunal lies only with the Supreme Court.

Advocate Suraj Mal Dalal appeared on behalf of the petitioners while CGSC Harish Vaidyanathan Shankar represented the respondents.

The High Court noted that in one of the related cases, it has been held by the Court held that the jurisdiction of the High Court under Articles 226 and 227 of the Constitution cannot be bypassed merely by making a provision for a direct Appeal to the Supreme Court against an order of a Tribunal for the reason that the Apex Court exercises jurisdiction under Sections 30 and 31 of the Act, 2007 only if a point of law of general public importance is involved.

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

Accordingly, the Court answered the reference and listed the matter before the Roster Bench on February 9, 2023.

Cause Title- Amar Singh Ex NB Sub & Ors. v. Union of India & Ors.

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