The Armed Forces Tribunal is a military tribunal formed under The Armed Forces Tribunal Act 2007 (established on 08 Aug 2009) and is empowered to adjudicate appeals against any order, decision, finding or sentence passed by a Court-Martial or any matter connected. The Armed Forces Tribunal adjudicates on disputes and complaints with respect to commission, appointments, enrolment and conditions of service in respect of persons subject to The Army Act 1950, The Air Force Act 1950, and The Navy Act 1957.
APPLICABILITY OF THE ACT
- The provisions of this Act shall apply to all persons subject to The Army Act 1950, The Air Force Act 1950, and The Navy Act 1957.
- The provisions of this Act shall also apply to retired personnel subject tThe Army Act 1950, The Air Force Act 1950, and The Navy Act 1957,of including their dependents, heirs and successors, in so far as they relate to service matters.
SCOPE OF THE ACT
The scope of the act deals with service matters in relation to all persons subject to The Army Act 1950, The Air Force Act 1950, and The Navy Act 1957, including their dependents, heirs and successors, in so far as they relate to service matters. The Service matters mean all matters relating to the conditions of their service and shall include:
- Remuneration including pension and other retirement benefits.
- Tenure including commission, appointment , enrolment, probation, confirmation, seniority ,training, promotion, reversion, premature retirement, superannuation, termination of service and penal deductions.
- Summary disposal and trials where the punishment of dismissal is awarded.
- Transfers and postings
- Leave of any kind
- Summary court martial except where the punishment is dismissal or imprisonment for more than 3 months.
EXCEPTION TO THE SCOPE OF THE ACT
It shall not include matters relating to orders issued under section 18 of The Army Act 1950, The Air Force Act 1950, and The Navy Act 1957.
Section 18 in The Army Act, 1950:
Tenure of service under the Act. Every person subject to this Act shall hold office during the pleasure of the President. Paramilitary forces are not considered to be a part of the Armed Forces Tribunal jurisdiction. AFT will exercise powers of all courts except the Supreme Court or High Court exercising jurisdiction under Article 226 and 227 of the Constitution of India.
COMPOSITION OF TRIBUNAL
The tribunal is composed of:
- Judicial Members – They are retired high court judges.
- Administrative Members – They are either retired members of the Armed Forces or a Judge Advocate General. The qualifications to be appointed as the administrative members of the Armed Forces Tribunal are:
- For retirees from Armed Forces – Holder of a rank of Major General or an equivalent post or above for a period of three years or more.
- For Judge Advocate General – Experience in the post for at least one year.
LOCATION OF ARMED FORCES TRIBUNAL AND ITS BENCHES
The principal bench of the Armed Forces Tribunal is located in New Delhi.
Armed Forces Tribunal has regional benches located in the cities mentioned below:
Chandigarh – Punjab, Haryana, Himachal Pradesh and Chandigarh
Lucknow – Uttar Pradesh and Uttarakhand
Kolkata – West Bengal, Bihar, Jharkhand, Orissa and U.T. of Andaman and Nicobar Islands
Guwahati – North-East Region
Chennai – Tamil Nadu, Andhra Pradesh and Pondicherry
Kochi – Kerala, Karnataka and Lakshadweep
Mumbai – Maharashtra and Gujarat
Jaipur – Rajasthan
Jabalpur – Madhya Pradesh and Chhattisgarh
Jammu – Jammu and Kashmir
Regional benches of Chandigarh and Lucknow have three benches each while the remaining have a single bench.
JURISDICTION, POWERS, AND AUTHORITY IN SERVICE MATTERS
For the purpose of adjudicating an application, The Tribunal shall have the same powers as are vested in a Civil Court under CPC, 1908 while trying a suit in respect of matters namely summoning, receiving and production of documents, evidence on affidavit, requisition of any public document under section 123 and 124 of the Indian Evidence Act, issuing commissions, reviewing its own decisions, dismissing, setting aside any other order etc.
The Tribunal shall decide both questions of law and facts.
All proceedings before the Tribunal shall be deemed to be Judicial proceedings.
The Tribunal shall exercise power of appeal against any order, decision, finding or sentence passed by a court martial or any matter where the findings of the court martial is legally not sustainable, involves wrong decision on a question of law or any material irregularity.
The Tribunal shall have power to grant bail to any person in military custody.
The Tribunal may allow an appeal against conviction.
Substitute the findings of the court martial and pass a sentence afresh.
Remit the whole or any part of the sentence, enhance, or mitigate the punishment found to be excessive, illegal or unjust.
Suspend a sentence of imprisonment.
Power of quashing a conviction by a court martial or ordering re-trial by a court martial.
The Tribunal is deemed to be a criminal court for the purposes of the following
Section 175 of IPC – Omission to produce documents or electronic records.
Section 178 of IPC – Refusing oath or affirmation
Section 179 of IPC – Refusing to answer public servant
Section 180 of IPC – Refusing to sign statement
Section 193 of IPC – Punishment for false evidence
Section 195 of IPC – Giving or fabricating false evidence
Section 196 of IPC – Using evidence known to be false
Section 228 of IPC – Interruption to any public servant
Chapter VVXI of CRPC Offences Affecting Administration of Justice
The Territorial jurisdiction of the Regional Benches shall flow from the administrative orders issued by the Government of India from time to time. The present the States and Bench-wise territorial jurisdiction are explained above at Para 11.
CONTEMPT OF THE TRIBUNAL
Any person who is guilty of Contempt of the Tribunal Shall on conviction, be liable to suffer imprisonment which may extend upto three years. The provisions of Section 14,15,17, 18, and 20 of Contempt of Courts Act 1971 shall apply for trying of offences of contempt of the Tribunal under the following circumstances:
- Supreme Court or HIgh court were reference to the Tribunal
- Chief Justice were reference to the Chairperson.
- Advocate General were a reference to the prosecutor, and
- Court were a reference to the Tribunal
ADMISSION OF AN APPLICATION UNDER THE ACT
- The Tribunal shall not admit an application unless it is satisfied that the applicant has availed and exhausted all the remedies available to him under the The Army Act 1950, The Air Force Act 1950, and The Navy Act 1957.
- TheTribunal shall not admit an application
- in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 21 has been made unless the application is made within six months from the date on which such final order has been made;
- in a case where a petition or a representation such as is mentioned in clause (b) of sub-section (2) of section 21 has been made and the period of six months has expired thereafter without such final order having been made;
- in a case where the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which jurisdiction, powers and authority of the Tribunal became exercisable under this Act, in respect of the matter to which such order relates and no proceedings for the redressal of such grievance had been commenced before the said date before the High Court.
- Notwithstanding anything contained in sub-section (1), the Tribunal may admit an application after the period of six months referred to in clause (a) or clause (b) of sub-section (1), as the case may be, or prior to the period of three years specified in clause (c), if the Tribunal is satisfied that the applicant had sufficient cause for not making the application within such period.
SPECIAL POWERS TO ARMED FORCES TRIBUNAL
The Tribunal shall not be bound by the procedure laid down in the CPC 1908, but shall be guided by the principles of natural justice. The order of the Tribunal disposing of an application shall be final and shall not be called in question in any Court and such order shall be executed accordingly. The Central Government may make rules for the purpose of carrying out the provisions of this act on the basis of which Army, Navy and Air Force has formed the rules.
APPEAL AGAINST ORDER OF AFT
Appeal to the Supreme Court.
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): Provided that such appeal is preferred within a period of ninety days of the said decision or order: Provided further that there shall be no appeal against an interlocutory order of the Tribunal. 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: 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.
Pending any appeal under sub-section (2), the Supreme Court may order that
- the execution of the punishment or the order appealed against be suspended; or
- if the appellant is in confinement, he be released on bail:
- 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.
There are various judgments of Hon’ble Supreme court and Hon’ble High courts regarding the power of Judicial review of High courts over AFT orders. There are various contradictory judgments on the subject. Two of the landmark and latest judgements on the subject are appended below for information.
In the case of Ram Harsh v. UOI, it was clarified that the Armed Forces Tribunal Act, 2007 does not strip the High Court of its power of judicial review under Article 226 of the Constitution. The jurisdiction granted to the High Court under Article 226 is extraordinary and discretionary in nature. It is important to note that the powers exercised by the High Court under Articles 226 and 227 are constitutional powers that cannot be excluded by legislation.
The power of judicial review vested in the High Court under Article 226 and 227 of the Constitution is an integral part of the basic structure of the Constitution. Judicial review in India encompasses three main aspects: review of legislative action, review of judicial decisions, and review of administrative action.
Therefore, judgments that restrict the High Courts from exercising judicial review over Armed Forces Tribunal (AFT) orders go against the established principles. The High Court retains the authority to review AFT orders under its constitutional powers and provide necessary oversight.
In the case of Major Nishant Kaushik vs Union of India and Ors. on 11 October 2022, the role of the High Court was clarified regarding its jurisdiction over decisions or orders made by the Tribunal. The High Court does not function as an appellate court in such cases but rather exercises its supervisory jurisdiction. When reviewing the judgment or order of the Tribunal, the High Court performs the power of judicial review, focusing on correcting errors of jurisdiction or errors that are evident on the face of the record, or when the Tribunal acts unlawfully. It is important to note that the writ jurisdiction of the High Court cannot be used as a disguised form of an appeal.
The scope of an appeal before the High Court from a final decision or order of the Tribunal is extremely limited, and it is restricted to the power of judicial review. This power is exercised by the High Court when examining the decision-making process or when correcting errors of jurisdiction or errors that are apparent on the face of the record, or when the Tribunal acts unlawfully. As a result, in most cases, no appeal from a final decision or order of the Tribunal can be filed before the High Court. The only recourse to challenge the final decision of the Tribunal lies with the Apex Court, the highest court of the country.
In conclusion, the recent judgment in the case of Balakrishna Ram Vs Union of India, Civil Appeal No 131/2020, has shed light on the jurisdiction and appellate process of the Armed Forces Tribunal in India. The court rejected the notion of transferring an intra-court appeal from a single judge’s judgment in the High Court to a Division Bench of the Tribunal. This decision emphasizes the importance of maintaining a proper balance and composition within the Tribunal, with the presence of both retired judges and retired Armed Forces officials.
While it is essential to prevent a blanket ban on the exercise of jurisdiction by the High Courts, as ruled in the L. Chandra Kumar case, it is equally important to uphold the objective of establishing the Armed Forces Tribunal. This objective primarily aims to alleviate the burden on High Courts in matters related to the Armed Forces. Allowing contradictory judgments from various High Courts to review Armed Forces Tribunal orders would undermine the very intent of the Act.
In light of these considerations, it is my opinion that the review of Armed Forces Tribunal orders should be limited to the highest court of the country, the Apex Court. This approach ensures consistency, uniformity, and adherence to the objectives behind the establishment of the Tribunal. By doing so, the burden on High Courts can be effectively reduced, and the intended purpose of the Armed Forces Tribunal can be realized.
Authored by Venkatesh ANS, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat