APPELLATE JURISDICTION OF THE HIGH COURTS WITH REGARD TO THE AFT
Updated: Aug 24, 2020
The Supreme Court in early January of 2020 restored the right to appeal, orders and decisions of the Armed Forces Tribunal (AFT) to the high courts. In the past, appeals from the AFT could only be heard by the Supreme Court which was not only cumbersome for the litigants challenging the decision of the AFT but also added additional workload on the Supreme Court.
The establishments of tribunals by the Parliament have led to the high court’s power getting curtailed with appeals of some tribunals lying solely with the Supreme Court. Tribunals were envisioned as an easier and faster method to dispose of cases. They also had the dual purpose of being specialised in certain areas of law such as the Companies Act, Competition Act, Consumer Protection Act and Armed Forces Acts and many others. Those aggrieved by a tribunal 's decision, could in most cases appeal to the High courts. Surprisingly, appeals from the AFT lay directly with the Supreme Court, side-stepping the lower court prior to the judgement in the Rojer Mathew case.
The Supreme Court in Union of India v. Major General Shri Kant Sharma had ruled in 2015 that high courts have no right to review orders and decisions of the AFT because the AFT Act allows for the redress of a direct appeal to the Supreme Court. However, all this changed after nearly 5 turbulent years. The Apex Court in the case of Balkrishna Ram v. Union of India overturned their earlier stance on the issue and held that a statutory or constitutional reform cannot abolish the formal authority of high courts over tribunals and that the 2015 judgment of the division bench cannot circumvent the already formed rule. The SC further ruled that it would be "very complicated and beyond the monetary control of an average litigant" to resolve a direct appeal by the AFT to the Supreme Court. The 2015 judgment has made litigants practically irremediable because, as provided for in the AFT Act, an appeal to the SC falls only in very specific situations concerning questions of law that are of public interest. Accordingly, the orders had effectively turned the AFT on par with the high courts for active and retired aggrieved military members, while civilian workers and pensioners aggrieved could contest Central Administrative Tribunal (CAT) verdicts in the HC and then in the SC maintaining the hierarchy of the courts. The landmark judgment in Rojer Mathew, which named another case directly relevant to the AFT held that Article 226 of the Constitution does not limit the statutory authority of high courts over the AFT and that following the same cannot be tampered with or diluted. But it must be zealously secured and cannot be circumscribed by any enactment’s requirements.
Allowing tribunals like the Armed Forces Tribunal (AFT), a direct right of appeal to the Supreme Court has changed the Apex court from a constitutional court to a mere court of appeal. Under every statute, it has now become a court for appeal. The Supreme Court should be a court of last resort and not a final forum with an all-encompassing jurisdiction over disputes ranging from a battle of custody to the scope of a municipal statute. A backlog of more than 60,000 cases prevents its ability to carefully ascertain important questions of law rather it is made to adjudicate appeals from almost all areas of law. This negatively influences the consistency of the highest court to judge matters. If high courts were to practice the authority to review over decisions of all tribunals, they would serve as a screen-test, allowing the Supreme Court to confine itself to all only the utmost important cases as was envisioned by the makers of the constitution.
Some policymakers argue that the reason for allowing certain appeals to lie with the SC was the gargantuan number of backlogged cases with the high courts, this reasoning fails as the Supreme court itself as mentioned earlier have a huge backlog. The remedy available is for the government to consciously accept the fact that there is a shortage of judges and to appoint judges of the sanctioned force for each high court. Another way forward is to create specialist courts for corporate, company law and environmental laws within the high courts.
The Law Commission of India in its 21st report was critical of the tribunals being granted powers equal to the high courts and recommended immediate changes:
"parties must have the right to move toward the high court under Article 226 and that an explanation that a cure under Article 136 is not by way a Statutory remedy".
Erroneous judgements like the one passed by the Delhi High Court, in Sh. Chattarsal Sehrawat and Court On Its Own Motion v. Re: Mehmood, which denied appellate jurisdiction to the high courts. The court opined that the high courts cannot go into the correctness of the implementation of the order passed by the Tribunals exercising Contempt jurisdiction. However, that wrong was also corrected in Tamil Nadu Pollution Control Board v. Sterlite Industries (I) Ltd, where the SC rejected the over-reach of tribunals:
“It is clear, therefore, that under the NGT Act, the Tribunal exercising appellate jurisdiction cannot strike down rules or regulations made under this Act. Therefore, it would be fallacious to state that the Tribunal has powers of judicial review akin to that of a High Court exercising constitutional powers under Article 226 of the Constitution of India. We must never forget the distinction between a superior court of record and courts of limited jurisdiction that was to argue that as against a writ court acting under Article 226 of the Constitution of India, the NGT is an expert body set up only to deal with environmental matters, again does not answer the specific issue before this Court”.
In a desperate attempt to change the prevailing setup of giving powers on par with the High courts, the Law Commission of India in its 21st report recommended the High Courts' power to review decisions of the tribunals:
“The power of judicial review conferred on the High Courts is same as that of the Supreme Court, which is a basic feature of the Constitution and can be tinkered with only by amending of the Constitution,”
A temporary solution would be for the tribunal’s decisions and orders to be challenged before the high court having territorial jurisdiction. This would be more beneficial that the present situation where parties are denied a chance to move to high courts against orders of tribunals and need to move to only to the Apex body. Nonetheless, a more foundational change is required in the functioning and power distribution in the judiciary. Recommendations made by the 21st Law Commission Report must be relooked into and must not remain a dead letter.
 INDIA CONST. art. 323-A.  Id, art. 323-B.  Rojer Mathew vs. South Indian Bank Ltd. and Ors, 2018 (10) SCJ 458.  Union of India and others v. Major General Shri Kant Sharma, (2015) 6 SCC 773.  Balkrishna Ram v. Union of India, (2020) 2 SCC 442.  Navdeep Singh v. Union of India, WP(C) No. 10751 of 2012 (P&H).  Supra note, art. 226.  Union of India (UOI) and Ors. vs. Sh. Chattarsal Sehrawat and Ors, 183 (2011) DLT 495 (India).  Court on Its Own Motion vs. State and Ors, MANU/DE/9073/2007 (India). Tamil Nadu Pollution Control Board v. Sterlite Industries (I) Ltd, AIR 2019 SC 1074 (India).