UNION OF INDIA & ORS. versus PARASHOTAM DASS

Citation: [2023] 3 S.C.R. 598 · Decided: 21-03-2023 · Supreme Court of India · Bench: SANJAY KISHAN KAUL · Disposal: Disposed off

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2023] 3 S.C.R.
UNION OF INDIA & ORS.
v.
PARASHOTAM DASS
(Civil Appeal No. 447 of 2023)
MARCH 21, 2023
[SANJAY KISHAN KAUL, B. V. NAGARATHNA
AND ABHAY S. OKA, JJ.]
Constitution of India – Art. 226 – Service matters relating to
members of three-armed forces – Whether the order passed by the
Armed Forces Tribunal would be amenable to challenge in the writ
jurisdiction under Art. 226 of the Constitution of India before any
High Court – Held: 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 Art. 226 of the
Constitution by the High Court – However, in respect of matters of
self-discipline, the principles are already enunciated by the Supreme
Court.
Constitution of India – Arts. 226 and 227 – Clarification under
– It is 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.
Disposing of the appeals and writ petition, the Court
HELD:1. This Court is conscious of the importance of the
role performed by the Armed Forces and the discipline level
required by these services. Thus, often many jurisprudential
principles of other tribunals cannot be imported into the decisions
of the Armed Forces Tribunal. The Armed Forces have their own
rules and 16 procedures, and if there is proper exercise of
jurisdiction in accordance with the norms of the Armed Forces,
the High Court or this Court have been circumspect in interfering
[2023] 3 S.C.R. 598
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with the same, keeping in mind the significance of the role
performed by the Armed Force. [Para 24][611-H; 612-A-B]
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]
UNION OF INDIA & ORS. v. PARASHOTAM DASS
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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 

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