Holding

There is no per se restriction on the High Court’s power under Article 226 to review orders of the Armed Forces Tribunal; the Kant Sharma decision is not the correct law.

Summary

The Supreme Court examined whether orders of the Armed Forces Tribunal (AFT) are amenable to writ jurisdiction under Article 226 of the Constitution. The Union of India contended that Section 14 of the AFT Act and Article 227(4) barred High Courts from exercising such jurisdiction, relying on the decision in Union of India v. Major General Shri Kant Sharma. The Court held that the Kant Sharma judgment was erroneous and conflicted with earlier Constitution Bench rulings in L. Chandra Kumar, S.N. Mukherjee and Rojer Mathew, which affirm that Article 226 is part of the basic structure and cannot be ousted. Consequently, High Courts may review AFT orders, except in matters of self‑discipline where specific principles already apply. The appeals and writ petition were disposed of, with the larger question answered in favour of maintainability of writ jurisdiction and several individual matters remanded to the appropriate High Courts.

Issues considered

The order passed by the Armed Forces Tribunal is amenable to challenge under Article 226 before a High Court.
Whether Section 14 of the Armed Forces Tribunal Act and Article 227(4) create a per se bar on High Court writ jurisdiction.
The correctness of the judgment in Union of India v. Major General Shri Kant Sharma regarding the limitation of Article 226.
The scope of High Court jurisdiction in matters of self‑discipline of the armed forces.

Legislation cited

Armed Forces Tribunal Act, 2007s. 14, s. 30, s. 31, s. 3(o)
Constitution of Indias. Article 136, s. Article 226, s. Article 227, s. Article 368

Subjects

Article 226Article 227Armed Forces Tribunalservice mattersjudicial reviewtribunalisationbasic structure doctrinewrit jurisdictionself‑disciplineSection 14 AFT Act

Judgment

598 [2023]REPORTS
SUPREME COURT 3 S.C.R. 598 [2023] 3 S.C.R.

A UNION OF INDIA & ORS.
v.
PARASHOTAM DASS
(Civil Appeal No. 447 of 2023)
B MARCH 21, 2023
[SANJAY KISHAN KAUL, B. V. NAGARATHNA
AND ABHAY S. OKA, JJ.]
Constitution of India – Art. 226 – Service matters relating to
members of three-armed forces – Whether the order passed by the
C
Armed Forces Tribunal would be amenable to challenge in the writ
jurisdiction under Art. 226 of the Constitution of India before any
High Court – Held: The judgment in Major General Shri Kant Sharma
& Anr. case does not lay down the correct law and is in conflict
with judgments of the Constitution Benches rendered prior and later
D to it, including in L. Chandra Kumar case, S.N. Mukherjee case, and
Rojer Mathew case making it abundantly clear that there is no per
se restriction on the exercise of power under Art. 226 of the
Constitution by the High Court – However, in respect of matters of
self-discipline, the principles are already enunciated by the Supreme
Court.
E
Constitution of India – Arts. 226 and 227 – Clarification under
– It is clarified that the power of the High Court under Article 226
of the Constitution is not inhibited, and superintendence and control
under Article 227 of the Constitution are somewhat distinct from
the powers of judicial review under Article 226 of the Constitution.
F
Disposing of the appeals and writ petition, the Court
HELD:1. This Court is conscious of the importance of the
role performed by the Armed Forces and the discipline level
required by these services. Thus, often many jurisprudential
G principles of other tribunals cannot be imported into the decisions
of the Armed Forces Tribunal. The Armed Forces have their own
rules and 16 procedures, and if there is proper exercise of
jurisdiction in accordance with the norms of the Armed Forces,
the High Court or this Court have been circumspect in interfering

H
598
UNION OF INDIA & ORS. v. PARASHOTAM DASS 599

with the same, keeping in mind the significance of the role A
performed by the Armed Force. [Para 24][611-H; 612-A-B]
2. While this Court agrees with the aforesaid principle, this
Court is unable to appreciate the observations in the case of Major
General Shri Kant Sharma & Anr., which sought to put an embargo
on the exercise of jurisdiction under Article 226 of the B
Constitution, diluting a very significant provision of the
Constitution which also forms the part of basic structure. The
principles of basic structure have withstood the test of time and
are emphasized in many judicial pronouncements as an ultimate
test. This is not something that can be doubted. That being the
position, the self-restraint of the High Court under Article 226 of C
the Constitution is distinct from putting an embargo on the High
Court in exercising this jurisdiction under Article 226 of the
Constitution while judicially reviewing a decision arising from an
order of the Tribunal. [Para 25][612-B-D]
3. On the legislature introducing the concept of D
“Tribunalisation” (one may say that this concept has seen many
question marks vis-a-vis different tribunals, though it has also
produced some successes), the same was tested in L. Chandra
Kumar case before a Bench of seven Judges of this Court. Thus,
while upholding the principles of “Tribunalisation” under Article E
323A or Article 323B, the Bench was unequivocally of the view
that decisions of Tribunals would be subject to the jurisdiction of
the High Court under Article 226 of the Constitution, and would
not be restricted by the 42nd Constitutional Amendment which
introduced the aforesaid two Articles. In view of this Court, this
should have put the matter to rest, and no Bench of less than F
seven Judges could have doubted the proposition. The need for
the observations in the five-Judges’ Bench in Rojer Mathew case
qua the Armed Forces Tribunal really arose because of the
observations made in Major General Shri Kant Sharma & Anr.
Thus, it is, reiterated and clarified that the power of the High G
Court under Article 226 of the Constitution is not inhibited, and
superintendence and control under Article 227 of the Constitution
are somewhat distinct from the powers of judicial review under
Article 226 of the Constitution. [Para 26][612-E-G; 613-A]

H
600 SUPREME COURT REPORTS [2023] 3 S.C.R.

A 4. To deny the High Court to correct any error which the
Armed Forces Tribunal may fall into, even in exercising
jurisdiction under Article 226, would be against the constitutional
scheme. The first independent judicial scrutiny is only by the
Armed Forces Tribunal. To say that in some matters, a judicial
scrutiny would amount to a second appeal, would not be the correct
B
way to look at it. What should be kept in mind is that in
administrative jurisprudence, at least two independent judicial
scrutinies should not be denied. A High Court Judge has immense
experience. In any exercise of jurisdiction under Article 226, the
High Courts are quite conscious of the scope and nature of
C jurisdiction, which in turn would depend on the nature of the
matter. [Para 28][613-E-G]
5. There is no necessity to carve out certain cases from
the scope of judicial review under Article 226 of the Constitution,
as was suggested by the Additional Solicitor General. It was
D enunciated in the Constitution Bench judgment in S.N. Mukherjee
case that even in respect of courts-martial, the High Court could
grant appropriate relief in a certain scenario as envisaged therein,
i.e., “if the said proceedings have resulted in denial of the
fundamental rights guaranteed under Part III of the Constitution
or if the said proceedings suffer from a jurisdictional error or any
E error of law apparent on the face of the record.” [Para 29][613-G-
H; 614-A-B]
6. How can courts countenance a scenario where even in
the aforesaid position, a party is left remediless? It would neither
be legal nor appropriate for this Court to say something to the
F contrary or restrict the aforesaid observation enunciated in the
Constitution Bench judgment in S.N. Mukherjee case. This Court
would loath to carve out any exceptions, including the ones
enumerated by the Additional Solicitor General extracted
aforesaid as irrespective of the nature of the matter, if there is a
G denial of a fundamental right under Part III of the Constitution or
there is a jurisdictional error or error apparent on the face of the
record, the High Court can exercise its jurisdiction. There
appears to be a misconception that the High Court would re-
appreciate the evidence, thereby making it into a second appeal,
etc. This Court believes that the High Courts are quite conscious
H
UNION OF INDIA & ORS. v. PARASHOTAM DASS 601

of the parameters within which the jurisdiction is to be exercised, A
and those principles, in turn, are also already enunciated by this
Court. [Para 30][614-B-E]
7. This Court has no hesitation in concluding that the
judgment in Major General Shri Kant Sharma & Anr. case does
not lay down the correct law and is in conflict with judgments of B
the Constitution Benches rendered prior and later to it, including
in L. Chandra Kumar case, S.N. Mukherjee case, and Rojer Mathew
case making it abundantly clear that there is no per se restriction
on the exercise of power under Article 226 of the Constitution
by the High Court. However, in respect of matters of self-
discipline, the principles already stand enunciated. [Para 32][614- C
F-G; 615-A]
L. Chandra Kumar v. Union of India & Others (1997)
3 SCC 261 : [1997] 2 SCR 1186; S. N. Mukherjee v.
Union of India (1990) 4 SCC 594 : [1990] 11 Suppl.
SCR 44; Rojer Mathew v. South Indian Bank Ltd. & D
Ors. (2020) 6 SCC 1 : [2019] 16 SCR 1 – followed.
Lt. Col. Prithi Pal Singh Bedi Etc. v. Union of India &
Others (1982) 3 SCC 140 : [1983] 1 SCR 393;
Kesavananda Bharti v. State of Kerala AIR 1973 SC
1461 : [1973] Suppl. SCR 1 – referred to. E

Union of India Ors. v. Major General Shri Kant Sharma
& Anr. (2015) 6 SCC 773 : [2015] 4 SCR 676 – held
not correct law.
Case law reference F
[1983] 1 SCR 393 referred to Para 1
[1997] 2 SCR 1186 followed Para 4
[1973] Suppl. SCR 1 referred to Para 5
[1990] 11 Suppl. SCR 44 followed Para 12 G
[2019] 16 SCR 1 followed Para 15
[2015] 4 SCR 676 held not correct law Para 13

H
602 SUPREME COURT REPORTS [2023] 3 S.C.R.

A CIVIL APPELLATE JURISDICTION: Civil Appeal No. 447 of
2023.
From the Judgment and Order dated 30.01.2013 of the High Court
of Punjab & Haryana at Chandigarh in CWP No. 662 of 2012.
With
B
Civil Appeal Nos. 457, 1807/2023, 5327/2015, 449, 448, 450, 451,
452, 483, 454, 453/2023 and W.P. (C) No. 76/2016.
R Venkataramani, AG, K M Nataraj, Sanjay Jain, A.S.Gs., R Bala,
Mrs. Sonia Mathur, Sr. Advs., Braj Kishore Mishra, Ms. Manju Jetley,
C K. Parameshwar, Ms. Arti Gupta, Ms. Kanti, Mukesh Kumar Sharma,
Mrs. Seema Bengani, Padmesh Mishra, Yuvraj Sharma, Anandh
Venkataramani, Mrs. Vijayalakshmi Venkataramani, Vinayak Mehrotra,
Ms. Mansi Sood, Chitvan Singhal, Ms. Sonali Jain, Abhishek Kumar
Pandey, Raman Yadav, Arvind Kumar Sharma, Sidhant Kohli, Nishank
Tripathi, Ms. Tanya Aggarwal, Arkaj Kumar, Ms. Harshita Sukhija,
D Ms. Ashima Gupta, Akash Kishore, Mukesh Kumar Maroria,
Ms. Archana Pathak Dave, Rakesh Dahiya, Satyavan Kudalwal, Akshat
Jain, Shreekant Neelappa Terdal, Advs. for the appearing parties.
The Judgment of the Court was delivered by
SANJAY KISHAN KAUL, J.
E
The prelude to the Armed Forces Tribunal Act, 2007:
1. A large number of cases relating to service matters of members
of the three-armed forces of the Union of India had been pending in
Courts for a considerable period of time and, thus, the Central Government
F engaged in the question of constituting an independent adjudicatory forum
for defence personnel. In 1982, the Supreme Court in Lt. Col. Prithi
Pal Singh Bedi Etc. vs. Union of India & Others1 had urged the
Central Government to take steps to provide for at least one judicial
review in service matters, and in 1992 the Estimate Committee of
Parliament in their 19th Report desired as much.
G
2. The then existing system of administration of justice in these
armed services provided for the submission of statutory complaints against
grievances relating to service matters and pre and post confirmation
petitions to various authorities against the findings and sentences of

H 1
(1982) 3 SCC 140.
UNION OF INDIA & ORS. v. PARASHOTAM DASS 603
[SANJAY KISHAN KAUL, J.]

courts-marital. The establishment of an independent Armed Forces A
Tribunal was, thus, conceived to fortify the trust and confidence amongst
the members of the three services. A Bill was introduced to provide for
judicial appeal on points of law and facts against verdicts of Court martial,
the absence of which had led to adverse comments from this Court. On
the Bill ultimately being passed, the Armed Forces Tribunal Act, 2007,
B
(hereinafter referred to as the ‘said Act’) came into being with effect
from 15.06.2008 and saw some amendments subsequently.
Legal Conundrum:
3. On the said Act coming into force, various issues arose during
its implementation. One such issue which begs consideration before us C
is whether the order passed by the Armed Forces Tribunal would be
amenable to challenge in the writ jurisdiction under Article 226 of the
Constitution of India before any High Court. The issue needs
consideration in a number of matters before us, and the decision on this
proposition would result in certain consequential orders being passed in
these different matters. Interestingly, in some of the matters including D
the lead matter, it appears that the objection to exercise jurisdiction under
Article 226 of the Constitution of India before the High Court was not
even raised, though that exercise is sought to be assailed before us.
Submissions on behalf of the private parties:
E
4. Mr. Arvind Datar, learned Senior counsel, and Mr. K.
Parameshwar, learned counsel, led the arguments on behalf of the
persons who were serving in different armed forces. They strongly
contended that there could never be a bar to the exercise of jurisdiction
under Article 226 of the Constitution of India by the High Court, albeit,
sometimes, the High Court makes its discretion not to exercise its F
jurisdiction. They relied on a Constitution Bench of seven-Judges of this
Court in L. Chandra Kumar v. Union of India & Others2, which
unequivocally opined that the power of judicial review under Article 226
is part of the basic structure of the Constitution and all the decisions of a
tribunal, whether constituted under Article 323A3 or 323B4 of the G
Constitution, would be subject to the High Court’s writ jurisdiction under
Article 226 of the Constitution.

2
(1997) 3 SCC 261.
3
323A. Administrative tribunals.
4
323B. Tribunals for other matters. H
604 SUPREME COURT REPORTS [2023] 3 S.C.R.

A 5. The discussion in the case of L. Chandra Kumar5 referred to
the judgment of this Court in the seminal case of Kesavananda Bharti
v. State of Kerala6 and many other subsequent judgments. It would be
useful to extract the discussion in para 62 of L. Chandra Kumar7 as
under:
B “62. In Kesvananda Bharati case, a thirteen-Judge Constitution
Bench, by a majority of 7:6, held that though, by virtue of Article
368, Parliament is empowered to amend the Constitution, that
power cannot be exercised so as to damage the basic features of
the Constitution or to destroy its basic structure. The identification
of the features which constitute the basic structure of our
C Constitution has been the subject-matter of great debate in Indian
Constitutional Law. The difficulty is compounded by the fact that
even the judgments for the majority are not unanimously agreed
on this aspect. [There were five judgments for the majority,
delivered by Sikri, C.J., Shelat & Grover, JJ. Hegde & Mukherjee,
D JJ. Jaganmohan Reddy, J. and Khanna, J. While Khanna, J. did
not attempt to catalogue the basic features, the identification of
the basic features by the other Judges are specified in the following
paras of the Court’s judgments : Sikri, C.J. (para 292), Shelat and
Grover, JJ. (para 582), Hegde and Mukherjee, JJ. (paras 632 &
661) and Jaganmohan Reddy, J. (paras 1159, 1161)]. The aspect
E of judicial review does not find elaborate mention in all the majority
judgments. Khanna, J. did, however, squarely address the issue
(at para 1529):
..The power of judicial review is, however, confined not merely
to deciding whether in making the impugned laws the Central
F or State Legislatures have acted within the four corners of the
legislative lists earmarked for them; the courts also deal with
the question as to whether the laws are made in conformity
with and not in violation of the other provisions of the
Constitution... As long as some fundamental rights exist and
G are a part of the Constitution, the power of judicial review has
also to be exercised with a view to see that the guarantees
afforded by those rights are not contravened.... Judicial review
5
(supra)
6
AIR 1973 SC 1461
7
H (supra)
UNION OF INDIA & ORS. v. PARASHOTAM DASS 605
[SANJAY KISHAN KAUL, J.]

has thus become an integral part of our constitutional system A
and a power has been vested in the High Courts and the
Supreme Court to decide about the constitutional validity of
provisions of statutes. If the provisions of the statute are found
to be violative of any article of the Constitution, which is
touchstone for the validity of all laws, the Supreme Court and
B
the High Courts are empowered to strike down the said
provisions.”
6. It was further submitted that the exclusion of judicial review
under Article 226 of the Constitution ought not to be countenanced
because of lack of any viable alternative appeal mechanism. This, in
turn, was based on: Firstly, Article 136(2) of the Constitution does not C
permit any Special Leave to Appeal to the Supreme Court against the
order of a court or tribunal constituted by or under any law relating to
the Armed Forces. Secondly, Section 31 of the said Act states that an
appeal to this Court would only lie if “a point of law of general public
importance” is involved. D
7. Thus, as most matters are personal to litigants being in the
nature of service matters, and may not involve a point of law of “general
public importance”, a litigant does not have any forum for grievance
redressal, except the High Court under Article 226, which it can approach,
aggrieved by an order of the Armed Forces Tribunal. Furthermore, the E
legislature was conscious of the seminality of the jurisdiction under Article
226 of the Constitution while drafting Section 14 of the said Act, which
expressly saves the jurisdiction of the High Court from entertaining
appeals arising from the Armed Forces Tribunal under Article 226 and
Article 227 of the Constitution.
F
8. Section 14(1) of the said Act reads as under.
“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 G
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.”
9. Learned counsels contended that Articles 226 and 227 of the
Constitution are not in pari materia and, thus, the limitation imposed
H
606 SUPREME COURT REPORTS [2023] 3 S.C.R.

A under Article 227(4) could not be extended to Article 226 of the
Constitution. Article 227(4) begins with the phrase “Nothing in this
Article ….....” implying that the embargo in the provision is only limited
to that Article.
10. It would be worthwhile to reproduce Article 227(4), which
B reads as under:
227. Power of superintendence over all courts by the High
Court –
......

C (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.”
11. Thus, even for the sake of argument, were it to be said that
Article 227(4) takes away the power of superintendence of the High
D Court for matters emanating from courts-martial under Section 15 8 of
the said Act, the same will not dilute the power of the High Courts under
Article 226 even for matters dealing with courts-martial. In any case,
the High Courts have been reluctant to entertain writ petitions against
orders under Section 15 of the said Act, and have refused to become a
court of second appeal.
E
12. Learned counsels fortified their arguments on the basis of
observations in S.N. Mukherjee v. Union of India9, more specifically
paragraph 42, where the Supreme Court held that the High Courts, under
Article 226, have the power of judicial review even in respect of courts-
martial and the High Courts can grant appropriate relief “if the said
F proceedings have resulted in denial of the fundamental rights
guaranteed under Part III of the Constitution or if the said
proceedings suffer from a jurisdictional error or any error of law
apparent on the face of the record.”
13. In the aforesaid context, it was sought to be urged that the
G observations of a two-Judges’ Bench of this Court in Union of India &
Ors. v. Major General Shri Kant Sharma & Anr.10, was against the
well-settled principle of law and established judicial precedent since that
8
Jurisdiction, powers and authority in matters of appeal against court-martial
9
(1990) 4 SCC 594
10
H (2015) 6 SCC 773
UNION OF INDIA & ORS. v. PARASHOTAM DASS 607
[SANJAY KISHAN KAUL, J.]

judgment sought to create a complete bar to the High Court’s power to A
review decisions arising from the Armed Forces Tribunal under Article
226 of the Constitution of India. Such a complete bar is contrary to the
Constitution Bench decision of the Supreme Court in L. Chandra
Kumar11 and S.N. Mukherjee12. What was significant, it was urged,
that the decision in Major General Shri Kant Sharma & Anr.13 failed
B
to consider that an aggrieved person in a service matter, if restrained
from approaching the High Court, would be left with no legal recourse
to approach any appellate authority, including the Supreme Court, since
service matters are private in nature and do not involve “point of law of
general public importance” under Section 31 of the said Act read with
Article 136(2) of the Constitution. C
14. The view, thus, was stated to be in direct conflict with the
observations of the seven-Judges’ Bench in L. Chandra Kumar14 in
para 79, which reads as under:-
“79. We also hold that the power vested in the High Courts to
exercise judicial superintendence over the decisions of all courts D
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
avoided.” E
15. Lastly, it was submitted that the issues are no more res integra
in view of the recent Constitution Bench Judgment of five-Judges’ Bench
of this Court in Rojer Mathew v. South Indian Bank Ltd. & Ors.15
where in paragraph 215, following L. Chandra Kumar16, this Court
settled that the writ jurisdiction under Article 226 does not limit the power F
of the High Court, expressly or by implication, against military or armed
forces dispute and that the restriction under Article 227(4) is only qua
administrative supervision by the High Courts and not qua judicial review.
Para 215 reads as under:

G
11
(supra)
12
(supra)
13
(supra)
14
(supra)
15
(2020) 6 SCC 1
16
(supra) H
608 SUPREME COURT REPORTS [2023] 3 S.C.R.

A “215. It is hence clear post L. Chandra Kumar that writ jurisdiction
under Article 226 does not limit the powers of High Courts
expressly or by implication against military or armed forces
disputes. The limited ouster made by Article 227(4) only operates
qua administrative supervision by the High Court and not judicial
review. Article 136(2) prohibits direct appeals before the Supreme
B
Court from an order of armed forces tribunals, but would not
prohibit an appeal to the Supreme Court against the judicial review
exercised by the High Court under Article 226.”
The pleas of Union of India and JAG Branch of the armed
forces
C
16. Mr. Sanjay Jain and Col. Balasubramanium sought to contend
that the first half of Section 3(o) of the said Act is amenable to the
jurisdiction of the Armed Forces Tribunal and the matters listed in the
second half are not amenable to the jurisdiction of the Armed Forces
Tribunal. Section 3(o) reads as under:
D
“3. Definitions.- In this Act, unless the context otherwise
requires,-
..... ..... .... .... ....
(o) “service matters”, in relation to the persons subject to the
E Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957)
and the Air Force Act, 1950 (45 of 1950), mean all matters relating
to the conditions of their service and shall include-
(i) remuneration (including allowances), pension and other
retirement benefits;
F
(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
G dismissal is awarded;
(iv) any other matter, whatsoever,
but shall not include matters relating to-

H
UNION OF INDIA & ORS. v. PARASHOTAM DASS 609
[SANJAY KISHAN KAUL, J.]

(i) orders issued under section 18 of the Army Act, 1950 (46 of A
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 B
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;” C

17. The appellate mechanism is also stated to be provided under
Sections 30 and 31 under Chapter V dealing with appeals of the said
Act. Sections 30 and 31 read as under:
“30. Appeal to the Supreme Court. - (1) Subject to the D
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:
E
Provided further that there shall be no appeal against an
interlocutory order of the Tribunal.
(2) An appeal shall lie to the Supreme Court as of right from any
order or decision of the Tribunal in the exercise of its jurisdiction
to punish for contempt: F
Provided that an appeal under this sub-section shall be filed
in the Supreme Court within sixty days from the date of the order
appealed against.
(3) Pending any appeal under sub-section (2), the Supreme Court
may order that- G

(a) the execution of the punishment or the order appealed
against be suspended; or
(b) if the appellant is in confinement, he be released on bail:
H
610 SUPREME COURT REPORTS [2023] 3 S.C.R.

A Provided that where an appellant satisfies the Tribunal that
he intends to prefer an appeal, the Tribunal may also exercise any
of the powers conferred under clause (a) or clause (b), as the
case may be.
..... ..... .....
B 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
C considered by that Court.
(2) An application to the Tribunal for leave to appeal to the Supreme
Court shall be made within a period of thirty days beginning with
the date of the decision of the Tribunal and an application to the
Supreme Court for leave shall be made within a period of thirty
D days beginning with the date on which the application for leave is
refused by the Tribunal.
(3) An appeal shall be treated as pending until any application for
leave to appeal is disposed of and if leave to appeal is granted,
until the appeal is disposed of; and an application for leave to
E appeal shall be treated as disposed of at the expiration of the time
within which it might have been made, but it is not made within
that time.”
18. We must point out here that a reading of Section 30 would
show that the appeal provision to the Supreme Court is subject to the
F provisions of Section 31. Such an appeal under Section 31 would lie with
the leave of the Armed Forces Tribunal. The Armed Forces Tribunal
shall not grant such leave unless it certifies 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 is to be considered by the Court.
19. There is, thus, no doubt that the appeal mechanism is restrictive
G
in character, something which the Government counsels could not get
away from. In the alternative, they urged that if this Court were to come
to the conclusion that the High Court would have jurisdiction under Article
226 emanating out of the orders passed by the Armed Forces Tribunal,
then that exercise should be restrictive in character. Sections 30 and 31
H
UNION OF INDIA & ORS. v. PARASHOTAM DASS 611
[SANJAY KISHAN KAUL, J.]

of the said Act, and Article 136(2) of the Constitution, while dealing with A
leave to appeal, also put such a restriction.
20. Learned counsel sought embargo from the High Court
exercising jurisdiction under Article 226 of the Constitution in the following
cases:
i) All cases related to Courts of Inquiry, Court(s) Martial, and B
Discipline;
ii) All cases related to pension and other retirement benefits,
tenure, promotion, retirement, administrative termination of
service, such as in cases involving moral turpitude, and leave;
C
iii) Matters pertaining to the Official Secrets Act; and
iv) Cases relating to espionage/sabotage.
21. The submission was that all disciplinary cases, including courts-
martial, which may mandate re-appreciation of evidence may be kept
out of the purview of the exercise of the High Court’s jurisdiction. The D
same may amount to a second criminal appeal.
22. An additional plea was made that nothing said in the present
judgment should be read as amounting to diluting the jurisdiction of the
Supreme Court, which would remain intact. Thus, the observation, as
regards adjudication of a certain category of matters in the writ jurisdiction E
of the High Court, was only to facilitate smoother administration of justice.
23. Lastly, it was submitted that the nature of the Armed Forces
Tribunal must be kept in mind, which is distinct from a normal
administrative tribunal under Article 323A or other tribunals under Article
323B of the Constitution and, thus, the High Court should not in routine F
interfere with the orders of the Armed Forces Tribunal under Article
226 seeking to exercise the jurisdiction akin to say a Central Administrative
Tribunal.
Our observations:
24. We have given thought to the matter, keeping in mind the last G
aspect emphasized by the learned Additional Solicitor General, dealing
with the importance of the Armed Forces Tribunal, and its jurisdiction
being distinct from other tribunals. We are conscious of the importance
of the role performed by the Armed Forces and the discipline level
required by these services. Thus, often many jurisprudential principles H
612 SUPREME COURT REPORTS [2023] 3 S.C.R.

A of other tribunals cannot be imported into the decisions of the Armed
Forces Tribunal. The Armed Forces have their own rules and procedures,
and if there is proper exercise of jurisdiction in accordance with the
norms of the Armed Forces, the High Court or this Court have been
circumspect in interfering with the same, keeping in mind the significance
of the role performed by the Armed Forces.
B
25. While we agree with the aforesaid principle, we are unable to
appreciate the observations in the case of Major General Shri Kant
Sharma & Anr.17, which sought to put an embargo on the exercise of
jurisdiction under Article 226 of the Constitution, diluting a very significant
provision of the Constitution which also forms the part of basic structure.
C The principles of basic structure have withstood the test of time and are
emphasized in many judicial pronouncements as an ultimate test. This is
not something that can be doubted. That being the position, the self-
restraint of the High Court under Article 226 of the Constitution is distinct
from putting an embargo on the High Court in exercising this jurisdiction
D under Article 226 of the Constitution while judicially reviewing a decision
arising from an order of the Tribunal.
26. On the legislature introducing the concept of “Tribunalisation”
(one may say that this concept has seen many question marks vis-a-vis
different tribunals, though it has also produced some successes), the
E same was tested in L. Chandra Kumar18 case before a Bench of seven
Judges of this Court. Thus, while upholding the principles of
“Tribunalisation” under Article 323A or Article 323B, the Bench was
unequivocally of the view that decisions of Tribunals would be subject to
the jurisdiction of the High Court under Article 226 of the Constitution,
and would not be restricted by the 42nd Constitutional Amendment which
F introduced the aforesaid two Articles. In our view, this should have put
the matter to rest, and no Bench of less than seven Judges could have
doubted the proposition. The need for the observations in the five-Judges’
Bench in Rojer Mathew19 case qua the Armed Forces Tribunal really
arose because of the observations made in Major General Shri Kant
G Sharma & Anr.20 Thus, it is, reiterated and clarified that the power of
the High Court under Article 226 of the Constitution is not inhibited, and

17
(supra)
18
(supra)
19
(supra)
20
H (supra)
UNION OF INDIA & ORS. v. PARASHOTAM DASS 613
[SANJAY KISHAN KAUL, J.]

superintendence and control under Article 227 of the Constitution are A
somewhat distinct from the powers of judicial review under Article 226
of the Constitution.
27. We also find merit in the contention of the private parties that
while the said Act was introduced keeping in mind the earlier observations
of the Supreme Court inter alia in Lt. Col. Prithi Pal Singh Bedi21 B
case, all that has been provided is a single judicial review by the tribunal
against the administrative/disciplinary decision as envisaged in the rules
applicable to different Armed Forces. Section 31 of the said Act is
undoubtedly restrictive in character as an appeal to the Supreme Court
would only lie on a point of law of general public importance. There are,
as urged by the learned counsels, a number of issues that cropped up, C
which are personal in character and do not raise issues of larger public
importance.
28. We can say with some experience of handling these matters
in exercise of jurisdiction under Article 226, prior to the creation of the
Armed Forces Tribunal, that there used to be a large number of pension D
matters. Persons who had served in the Armed Forces were left at bay
at the stage of pension. This jurisdiction is also vested with the Armed
Forces Tribunal. It would be difficult to say that there would be a larger
public interest involved in a pension matter, but then, for that concerned
person, it is of great importance. To deny the High Court to correct any E
error which the Armed Forces Tribunal may fall into, even in exercising
jurisdiction under Article 226, would be against the constitutional scheme.
The first independent judicial scrutiny is only by the Armed Forces
Tribunal. To say that in some matters, a judicial scrutiny would amount
to a second appeal, would not be the correct way to look at it. What
should be kept in mind is that in administrative jurisprudence, at least F
two independent judicial scrutinies should not be denied, in our view. A
High Court Judge has immense experience. In any exercise of jurisdiction
under Article 226, the High Courts are quite conscious of the scope and
nature of jurisdiction, which in turn would depend on the nature of the
matter. G
29. We believe that there is no necessity to carve out certain
cases from the scope of judicial review under Article 226 of the
Constitution, as was suggested by the learned Additional Solicitor General.
It was enunciated in the Constitution Bench judgment in S.N.
21
(supra) H
614 SUPREME COURT REPORTS [2023] 3 S.C.R.

A Mukherjee22 case that even in respect of courts-martial, the High Court
could grant appropriate relief in a certain scenario as envisaged therein,
i.e., “if the said proceedings have resulted in denial of the
fundamental rights guaranteed under Part III of the Constitution
or if the said proceedings suffer from a jurisdictional error or any
error of law apparent on the face of the record.”
B
30. How can courts countenance a scenario where even in the
aforesaid position, a party is left remediless? It would neither be legal
nor appropriate for this Court to say something to the contrary or restrict
the aforesaid observation enunciated in the Constitution Bench judgment
in S.N. Mukherjee23 case. We would loath to carve out any exceptions,
C including the ones enumerated by the learned Additional Solicitor General
extracted aforesaid as irrespective of the nature of the matter, if there is
a denial of a fundamental right under Part III of the Constitution or there
is a jurisdictional error or error apparent on the face of the record, the
High Court can exercise its jurisdiction. There appears to be a
D misconception that the High Court would re-appreciate the evidence,
thereby making it into a second appeal, etc. We believe that the High
Courts are quite conscious of the parameters within which the jurisdiction
is to be exercised, and those principles, in turn, are also already enunciated
by this Court.
E 31. We also fail to appreciate as to why there should be any
apprehension of diluting the jurisdiction of the Supreme Court as envisaged
under the Act or the constitutional scheme, based on observations made
by us in the present judgment.
Conclusion:
F 32. We have, thus, no hesitation in concluding that the judgment in
Major General Shri Kant Sharma & Anr.24 case does not lay down
the correct law and is in conflict with judgments of the Constitution
Benches rendered prior and later to it, including in L. Chandra Kumar25
case, S.N. Mukherjee 26 case, and Rojer Mathew27 case making it
G abundantly clear that there is no per se restriction on the exercise of
22
(supra)
23
(supra)
24
(supra)
25
(supra)
26
(supra)
H 27
(supra)
UNION OF INDIA & ORS. v. PARASHOTAM DASS 615
[SANJAY KISHAN KAUL, J.]

power under Article 226 of the Constitution by the High Court. However, A
in respect of matters of self-discipline, the principles already stand
enunciated.
33. We having now dealt with the general propositions, turn to the
individual cases as they may require different nature of orders. In fact,
a list of the matters and the nature of orders solicited have also been set B
out by Mr. K. Parameshwar, learned counsel, and are being dealt with
as follows:
I. The first category of cases is one where the matters were
heard on merits by the respective jurisdictional High Courts
but were disposed of as not maintainable in view of the judgment C
in Major General Shri Kant Sharma & Anr.28 case. These
are not matters raising points of law of general public
importance and would have to be examined on merits by each
High Court under Article 226 of the Constitution. Thus, these
matters are required to be remanded to the respective High
Courts for a decision on merits. The case numbers and the D
name of the parties are as under:
i. SLP(C) No.20721/2015 titled Daxina Kumari v. Union
of India.
ii. SLP(C) No.17320/2017 titled K.C. Shibu v. Union of E
India.
iii. SLP(C) No.20499/2015 titled Krishna Nandan Mishra
v. Union of India.
iv. SLP(C) No.26617/2015 titled Nand Lal Verma v. Union
of India. F
v. SLP(C) No.26568/2015 titled Randeep Singh Guleria
v. Union of India.
vi. SLP(C) No.26620/2015 titled Gopi Ram v. Union of
India.
G
vii. SLP(C) No.36386/2015 titled Avi Chander Sud v. Union
of India.

28
(supra) H
616 SUPREME COURT REPORTS [2023] 3 S.C.R.

A viii. SLP(C) No.5111/2016 titled Gurcharan Singh v. Union
of India; SLP (C) No.28101/2016 titled Nirmal Singh v.
Union of India.
ix. SLP(C) No.1788/2023 titled Davinder Singh v. Union
of India.
B II. SLP(C) No.34797/2014 titled Union of India v. Parashotam
Dass, which was filed by the Union of India on merits
challenging the judgment of the High Court granting relief
to the respondent. The matter would have to be considered
by a two Judges Bench of this Court on merits.
C III. The Union of India in Civil Appeal No.5327/2015 titled Union
of India v. Thomas Vaidyan M., sought reference to a larger
Bench as to, whether, a challenge would lie directly to this
Court or only before the High Court. As petitions filed under
Article 226 of the Constitution against orders of the Armed
D Forces Tribunal are held to be maintainable, this matter
would also require to be remanded to the High Court to be
decided on merits since it is a service matter personal to
the litigant and does not involve a point of law of general
public importance.

E IV. The vires of Sections 31 and 32 of the said Act were under
challenge in WP(C) No.76/2016 titled Gurbux Singh Dhindsa
v. Union of India, filed under Article 32 of the Constitution
by the father of an Air Force officer who was killed in an
operational area in J&K. He was claiming interest over the
relief granted by the Armed Forces Tribunal but could not
F have filed a direct appeal since the matter was personal to
the litigant and did not involve any point of law of general
public importance and High Courts were not entertaining
matters in view of the judgment in Major General Shri
Kant Sharma & Anr.29 case.
G It was submitted that prayer for declaring Sections 30 &
31 as ultra vires would not be pressed in case the writ
jurisdiction under Article 226 is held to be maintainable and,
thus, the prayer was to dispose of this matter with liberty to

29
H (supra)
UNION OF INDIA & ORS. v. PARASHOTAM DASS 617
[SANJAY KISHAN KAUL, J.]

approach the High Court. We accept the plea and order A
accordingly.
34. The larger question having been answered, the aforesaid
individual matters shall be dealt with depending on the facts of each
case, as per the aforesaid directions passed by us.
35. The appeals and the writ petition are disposed of in the aforesaid B
terms leaving the parties to bear their own costs.

Ankit Gyan Appeals and Writ petition disposed of.
(Assisted by : Aarsh Choudhary, LCRA)
C

D

E

F

G

H