Union of India & Ors. vs Parashotam Dass

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 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 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 “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 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 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 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]

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 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 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 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 error of law apparent on the face of the record.” [Para 29][613-GH; 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 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 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 reappreciate the evidence, thereby making it into a second appeal, etc. This Court believes 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. [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 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 selfdiscipline, the principles already stand enunciated. [Para 32][614F-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. & 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.

Union of India Ors. v. Major General Shri Kant Sharma & Anr. (2015) 6 SCC 773 : [2015] 4 SCR 676 – held not correct law.