Away from the mainstream gaze and tumult over Section 66A, on March 11, defence personnel, military veterans and their families were declared lesser citizens — lesser than what they already were. On that day, based on an appeal filed by the last government but prosecuted by the current one, the Supreme Court declared that high courts would not entertain challenges to the orders of the Armed Forces Tribunal (AFT), thereby effectively making the said tribunal the first and last court for litigants, since, according to provisions of the AFT Act, an appeal anyway does not lie even with the SC as a matter of right, unless there is the exceptional involvement of a “point of law of general public importance”.
The SC, based on self-deprecating arguments put forth by the army and the defence ministry, also adverted to Article 33 of the Constitution, which states that fundamental rights of defence personnel can be restricted or abrogated. Needless to state, from the celebrated Kesavananda Bharati case onwards, it is well appreciated that restrictions are limited to maintenance of discipline while performing duties, and extend to other uniformed forces too.
Using the plank of Article 33 to deny the right to access justice to litigants was, hence, an outright overstretch. Even otherwise, the majority of litigants before the AFT are not defence personnel but ex-servicemen and their families fighting for minor issues, such as disability benefits, correct fixation of pension, etc — issues that are personal and definitely do not meet the stringent criterion of “public importance” so as to invoke the highest court of the land, which is already overburdened and does not enjoy the luxury of time for constitutional questions.
Lamentably, what the officialdom succeeded in attaining is that justice becomes inaccessible and unaffordable. Imagine a poor widow in Kerala engaging a lawyer in the SC for challenging an AFT order denying her a few hundred rupees of benefits and then attempting to plead that her appeal involves a “point of law of general public importance”. It is yet another story that this is one of the reasons why direct appeals to the SC were frowned upon by a seven-judge Constitution bench in L. Chandra Kumar’s case.
A minority of those connected with the officialdom was trying to sell this disaster to the gullible defence community as a celebration, portraying “quick justice” and the “elimination” of one layer. Needless to say, this has not eliminated one layer but eliminated all layers altogether, unless one can prove “public importance” and has deep pockets to afford litigation in the SC. The shortening of the judicial process cannot be at the cost of precious rights of the citizenry and the value of judicial review can only be fathomed through the eye of a losing litigant, not by the system that has an army of lawyers at its disposal to file appeals in the SC at the taxpayer’s expense.
A multi-tiered approach to judicial redress is the hallmark of every democracy and had the “elimination” of layers been a profound need, then we would have had a system of appeals from the lowest court of junior division civil judge directly to the SC. Central government employees and retirees aggrieved by orders of the Central Administrative Tribunal have a right to judicial review before the high court and then the SC, whereas the system has called for snatching similar rights from defence employees, ex-servicemen and even their family members.
The writ jurisdiction of our high courts is designed to keep authorities and tribunals within the bounds and confines of law and to keep a check on their recklessness and rashness. With all due respect to the AFT and its good work, it functions under the same defence ministry against which it is supposed to pass orders, the defence secretary against whom decisions are to be rendered sits on the selection (and reappointment) panel of AFT members and also in the investigation committee to probe complaints, if any, received against them. Hence, a vested right of judicial review by jurisdictional high courts assumes utmost importance.
The AFT does not even possess the usual trappings of a court, including powers of civil contempt or a procedure to get its orders implemented. So it came as no surprise that, just two days after the ruling, the SC, in another case, reiterated the known position that tribunals are inferior to high courts and that judicial review by high courts is part of the basic structure of the Constitution, which cannot be taken away even by a constitutional amendment.
This decision, based on the plea of the defence ministry, has rendered litigants remediless and without any vested right of judicial redress — the only such instance in constitutional history. Till the issue is revisited by a larger bench of the SC or the lynchpin sections repealed, litigants shall continue to languish in lower confines compared to the rights guaranteed to other citizens, a situation neither warranted nor envisaged by the framers of the blueprint for our democracy — the Constitution of India.
The writer is a high court lawyer and founder president of the AFT Bar Association. He is also a member of the International Society for Military Law and the Law of War at Brussels