The Indian Armed Forces are the military forces of the Republic of India and consist of three services – The Indian Army, The Indian Navy, and The Indian Air Force. The members of these services are governed by The Army Act, 1950, The Navy Act, 1957 and The Air Force Act, 1950 respectively.
The One Hundred and Sixty Ninth report titled AMENDMENT OF THE ARMY, NAVY, AND AIR FORCE ACT, of the Fifteenth Law Commission of India, under the Chairmanship of Justice B.P Jeevan Reddy took up suo moto cognizance of the need to amend the Army Act, The Navy Act and The Airforce Act in view of the Honorable Supreme Court’s observations in the case of Lt. Col Prithi Pal Singh v. Union of India1 with respect to absence of the remedy of appeal against the orders of court martial and the absence of recording reasons by court martials in support of their decisions.
The report of the commission concluded that in order to overcome the deficiencies of the Army Act, Navy Act and Air Force Act, it is essential to,
“ provide an appropriate appellate forum to entertain appeals against the final orders passed by the court martials.” The report provided for setting up a three-member tribunal common to the Army, Navy and Air Force consisting of civilian members as well as members from the Armed Forces to adjudicate the disputes and complaints with respect to conditions of service of persons appointed to the Army, Navy, and Air Force.
The Armed Forces Tribunal Act, 2007 came into force on 15th June 2008 and the Armed Forces Tribunal was inaugurated by the President of India on 8th August 2009.
BENCHES OF THE TRIBUNAL
The Tribunal has one Principal Bench at New Delhi and ten regional benches at Srinagar, Chandigarh, Jaipur, Lucknow, Jabalpur, Mumbai, Kolkata, Guwahati, Chennai, Kochi. The regional benches at Chandigarh and Lucknow have three benches each while the remaining regional benches each have one bench.
COMPOSITION OF THE TRIBUNAL
Section 5 (1) of the Armed Forces Tribunal Act, 2007 provides that the Tribunal shall consist of a Chairperson and such number of Administrative and Judicial members as the Central Government may deem fit.
Section 5 (2) of the Armed Forces Tribunal Act, 2007 provides that each bench shall consist of one Administrative member and one Judicial Member.
The Chairperson and other members of the Tribunal hold office for a period of four years from the date on which they enter office.
QUALIFICATIONS FOR MEMBERSHIP OF THE TRIBUNAL
To be qualified for appointment as a Judicial Member, a person must be either a retired Supreme Court Judge or a retired Chief Justice of a High Court. [Section 6 (1)]
Administrative Members are retired members of the Armed Forces who are holding or have held the rank of Major General or above in the Army or an equivalent rank in the Navy or Air Force for a period of three years or more. Judge Advocate General (JAG), who have held the appointment for at least one year are also entitled to be appointed as an Administrative Member. [Section 6 (3)].
JURISDICTION OF THE TRIBUNAL
Section 14 of the Armed Forces Tribunal Act, 2007 provides that from the date of its appointment, the Tribunal shall exercise all the powers, authority and jurisdiction which was exercisable by other courts with respect to service matters of persons subject to the Army Act, 1950, Navy Act 1957 and Air Force Act, 1950.
The tribunal is also empowered to reject an application if it is satisfied that the matter is not for adjudication by it. The reasons for the same must be recorded in writing.
Section 15 of the Act provides that the Tribunal is empowered to exercise power, authority and jurisdiction in relation to an appeal against the order of a court martial.
TERRITORIAL JURISDICTION OF THE TRIBUNAL
The Territorial jurisdiction of the Regional Benches flows from the administrative orders issued by the Government of India from time to time. At present the States and Bench – wise territorial jurisdiction is as under –
Punjab, Haryana, Himachal Pradesh and U.T of Chandigarh
Uttar Pradesh, Uttarakhand
West Bengal, Bihar, Jharkhand, Orissa and U.T. of Andaman and Nicobar Islands
North East Region
Maharashtra and Gujarat
Kerala, Karnataka and Lakshadweep
Tamil Nadu, Andhra Pradesh and U.T. of Pondicherry
Madhya Pradesh and Chhattisgarh
U.T. of Jammu & Kashmir
APPEALS (SECTION 30 – SECTION 32)
Appeal against the final decision of the Tribunal lies to the Supreme Court and has to be preferred within ninety days of the decision. There shall lie no appeal against an interlocutory order of the Tribunal.
The Tribunal is empowered to punish for its contempt under Section 19 of the Armed Forces Tribunal Act, 2007. An appeal against an order passed by the Tribunal in exercise of the power conferred on it by Section 19 shall lie to the Supreme Court and has to be preferred within sixty days from the date of the order.
Section 31 provides that an appeal shall lie to the Supreme Court with the leave of the Tribunal and such leave shall be granted only if the Tribunal certifies that, “ a point of law of general public importance is involved in the decision.” An application for leave to appeal to the Supreme Court has to be made within thirty days of the date of the decision. If the application for leave is refused by the Tribunal, an application can be made to the Supreme Court within thirty days from the date on which the Tribunal refused the application.
The Supreme Court is empowered to extend the time within which an appeal is preferred under Sections 30 (2) and 31 on receiving an application for the same. (Section 32)
In the case of Union of India & Ors. v. Major General Shri Kant Sharma & Anr2 , the question raised was, “whether the right of appeal under Section 30 of the Armed Forces Tribunal Act, 2007, against an order of the Armed Forces Tribunal with the leave of the Tribunal under Section 32 of the Act or leave granted by the Supreme Court, or bar of leave to appeal before the Supreme Court under Article 136(2) of the Constitution of India, will bar the jurisdiction of the High Court under Article 226 of the Constitution of India regarding matters related to Armed Forces.”
The Apex court held that, “If the High Court entertains a petition under Article 226 of the Constitution of India against order passed by Armed Forces Tribunal under Section 14 or Section 15 of the Act bypassing the machinery of statute i.e. Sections 30 and 31 of the Act, there is likelihood of anomalous situation for the aggrieved person in praying for relief from this Court.”
In the case of Balkrishna Ram v. Union of India,3 the Supreme Court held that, “ the principle that the High Court should not exercise its extraordinary writ jurisdiction when an efficacious alternative remedy is available, is a rule of prudence and not a rule of law. The existence of such remedy however does not mean that the jurisdiction of the High Court is ousted.
There may be cases where the High Court would be justified in exercising its writ jurisdiction because of some glaring illegality committed by the AFT. To expect a person to approach the Supreme Court in every case may not be justified. It is extremely difficult and beyond the monetary reach of an ordinary litigant to approach the Supreme Court. Therefore, it will be for the High Court to decide in the peculiar facts and circumstances of each case whether it should exercise its extraordinary writ jurisdiction or not. There cannot be a blanket ban on the exercise of such jurisdiction because that would effectively mean that the writ court is denuded of its jurisdiction to entertain such writ petitions.”
The Armed Forces Tribunal was established to provide a platform to the Armed Forces personnel for appeal against the orders of the court martial where the individuals felt that they were wronged or adequate justice was not meted out to him and also to deal with the service matters both of the serving personnel as well as the veterans and to provide them easy access to justice closer to their place of posting or place of stay by establishing multiple benches across the country.
1. 1982 AIR 1413
2. (2015) 6 SCC 773
3. (2020) 2 SCC 442
This article is written by Rebecca Kanwar of Army Institute of Law, Mohali.