Plea In Jharkhand High Court Challenges Constitutional validity of Armed Forces Tribunal Act, 2007

A former non-commissioned Officer of the Indian Air Force (and a final year law student) has moved the Jharkhand High Court, challenging the vires of the Armed Forces Tribunal Act, 2007, as being violative of Articles 14, 19 & 21 of the Indian Constitution. The writ petitioner, Dilip Kumar, has stated that he was compulsory discharge from his service due to accumulation of six summary punishments in his service-sheet. He further averred that he wishes to pursue legal proceedings against such punishments and dismissal before the Tribunal. However, the following provisions have precluded him from seeking justice, thus rendering the impugned Act ultra vires the Constitution. Benches of Armed Forces Tribunal not within the accessible reach Section 5(4) of the Act provides that the Benches of the Tribunal shall ordinarily sit at Delhi (which shall be known as the Principal Bench), and at such other places as the Central Government may, by notification, specify Thus, the Petitioner has submitted that neither any bench of the Armed Forces Tribunal is located in the State of Jharkhand nor its appellate forum i.e. Supreme Court is within the accessible reach. He submits that the provision overlooks the fact that may Petitioners may not have sufficient financial means/ conducive health/ the time to regularly visit such forums to conduct their cases. Thus, the provision is said to be violative of Articles 14 & 21 of the Constitution for restricting the access to justice. He has also submitted that as per constitution bench judgments of the Supreme Court, since, AFT is substitution of High Courts, as such, its benches are mandatorily required to be co-located along with the High Courts. Reliance is placed on Madras Bar Association v. Union of India, 2014 SCC Online SC 771, whereby a constitution Bench of the Supreme Court struck down a similar provision under the National Tax Tribunal Act, 2005. Armed Forces Tribunal is un-independent as compared to High Courts The Petitioner has submitted that under the Act, the Central Government has a substantial role in determining the sitting of benches. Thus, it is contended that the AFT Act is un-independent as compared to High Courts for the: Un-independence in constituting the benches of the Tribunal as provided under Section 5(2), proviso of Section 5(3)(c) and 41(2)(a); Un-independence in selection of the seat of Tribunal's Benches as provided under Section 5(4);Un-independence in exercising the financial powers as provided under Section 12 of AFT Act r/w Rule 4 of (Financial and Administrative) Powers Rules, 2008 Un-independence in arranging the Tribunal's infrastructure as provided under Section 13(1) of AFT Act. It is again pointed out that similar provisions under the National Tax Tribunal Act, 2005 were struck down in Madras Bar Association (supra). It was held therein, "It would be inappropriate for the Central Government, to have any administrative dealings with the NTT or its Members. In the jurisdictional High Courts, such power is exercised exclusively by the Chief Justice, in the best interest of the administration of justice. Allowing the Central Government to participate in the aforestated administrative functioning of the NTT, in our view, would impinge upon the independence and fairness of the Members of the NTT." Section 19 of AFT Act for 'Contempt of Tribunal' is ultra vires The Petitioner has submitted that it is beyond the law-making competence of the legislature to provide for the trial of "contempt of the tribunal" as if it were "contempt of court. The Petitioner has stated that the impugned provision is violative of 14, 19 & 21 of Constitution for the following reasons: It vests the Tribunal with contempt jurisdiction sans any corresponding constitutional safeguards for its impartial and independent exercise of such power;It irrationally makes only a particular class of persons liable for the "contempt of the tribunal" and ipso facto by the necessary implication saves the Members of such Tribunal from the said liability; It irrationally creates a separate class of punishment for the common offence of contempt;It has a chilling effect on the fundamental rights of advocacy of the litigants'/attorney who appears before the Tribunal to exercise their constitutional/statutory rights. "The bare reading of sub-Section19.(2) makes it clear that certain specific provisions of Contempt of Court Act, 1971 had been mutatis mutandis made applicable for the trial of "contempt of the tribunal". On this count, applicant humbly submits that such analogues application of Court of Contempt Act is constitutionally impermissible," the plea states. It adds, ""Contempt of court/itself" is an offence of sui generis which is implicit in Art. 129 and 215 of Constitution of India and further expounded by Contempt of Court Act, 1971....

Plea In Jharkhand High Court Challenges Constitutional validity of Armed Forces Tribunal Act, 2007

Akshita Saxena

Tags