As a result of a statutory provision for direct appeal at the Supreme Court against an order of the Armed Forces Tribunal, Justice Sanjay Kishan Kaul of the Supreme Court stated on January 19 that the high courts' authority is not entirely precluded. “In difficult periods in our history, it is Article 226 and the basic structure doctrine that have come to the aid of society and the people at large, and I have no hesitation in saying this.”

It should be noted that the judge's remark was made at a time when there was a discussion about the "fundamental structural theory," following the Vice President's criticism of the 1973 Kesavanda Bharati ruling for setting an unwarranted precedent.

Senior Advocate Arvind Datar argued before the three-judge bench, which also included Justices Abhay S. Oka and B.V. Nagarathna, that the writ remedy granted under Article 226 could not be "shuttered" and retired soldiers and wives of slain defense personnel left with essentially no redress.

The supreme court is the sole and last body of appeal under the Armed Forces Tribunal Act, 2007, which grants the tribunal a broad range of authority, and it exercises its appellate jurisdiction in accordance with Sections 30 and 31. The act's structure states that cases that reach the Supreme Court after a challenge to a tribunal decision contain a legal problem of "wide public concern" or one that the high court deems worthwhile. Justice Kaul took notice of this and said, “What troubles me is that there is no remedy in certain cases not having larger ramifications, such as pension, disability entitlement, et cetera. These are matters of the moment. But, because this court only takes up cases with substantial questions of law, the scrutiny of matters not fulfilling this condition is limited only to a single forum, with no remedy.” He also insisted that a two-tiered judicial scrutiny was necessary to ensure justice.

Pointing out the conditionality of the appellate remedy provided in the act, Justice Nagarathna said, “There must be some other remedy available otherwise the order of the Armed Forces Tribunal would attain finality, unless there is a question of general public importance.” No judicial or quasi-judicial authority in the country, she added, should feel that its decision is final and unappealable, with the exception of the Supreme Court. “That is dangerous,” the judge cautioned.

Justice Kaul suggested incorporating pertinent statutory amendments allowing the High Courts to deal with matters that did not involve a legal question of substantial importance while acknowledging that the judicial review power exercised by the High Court would be in many ways limited with respect to orders of the Armed Forces Tribunal, even if such a power were to be conferred. “This will make the process simpler, and the High Courts will also be cautious about its own limits,” said the judge. Sanjay Jain, additional solicitor general, stated, “I will take up these suggestions with the concerned authorities and get back.” “Arguments concluded,” As he gave the chief legal officer permission to provide a brief note listing, among other things, situations where it would be improper for the High Courts to exercise their authority, Justice Kaul made a ruling.

Arguments were concluded and the judgment was reserved.

Case Title: UNION OF INDIA AND ORS. Versus PARASHOTAM DASS and connected cases
Citation: C.A. No. 447/2023

Appearances of the advocates:-

Mr. Braj Kishore Mishra, AOR

Ms. Manju Jetley, AOR

Mr. K. Parameshwar, AOR
Ms. Arti Gupta, Adv.
Ms. Kanti, Adv.

Mr. Mukesh Kumar Sharma, AOR
Mr. R Venkataramani, Attorney General for India (N.P.)
Mr. K M Nataraj, A.S.G.
Mr. Sanjay Jain, A.S.G.
Mr. R Bala, Sr. Adv.
Mrs. Sonia Mathur, Sr. Adv.
Mrs. Seema Bengani, Adv.
Mr. Padmesh Mishra, Adv.
Mr. Yuvraj Sharma, Adv.
Mr. Anandh Venkataramani, Adv.
Mrs. Vijayalakshmi Venkataramani, Adv.
Mr. Vinayak Mehrotra, Adv.
Ms. Mansi Sood, Adv.
Mr. Chitvan Singhal, Adv.
Ms. Sonali Jain, Adv.
Mr. Abhishek Kumar Pandey, Adv.
Mr. Raman Yadav, Adv.
Mr. Arvind Kumar Sharma, AOR
Mr. Sidhant Kohli, Adv.
Mr. Nishank Tripathi, Adv.
Ms. Tanya Aggarwal, Adv.
Mr. Arkaj Kumar, Adv.
Ms. Harshita Sukhija, Adv.
Ms. Ashima Gupta, Adv.
Mr. Akash Kishore, Adv.

Mr. Mukesh Kumar Maroria, AOR
Ms. Archana Pathak Dave, AOR

Mr. Rakesh Dahiya, AOR
Mr. Satyavan Kudalwal, Adv.
Mr. Akshat Jain, Adv.
Mr. Shreekant Neelappa Terdal, AOR