Specialised Justice and Constitutional Review: Reassessing the Relation Between the Armed Forces Tribunal and the High Courts

Abstract

The Armed Forces Tribunal Act, 2007 transferred jurisdiction over military service matters and court-martial appeals to a specialised forum, while Section 14 preserved the jurisdiction of the High Courts under Articles 226 and 227. This raises the question of what remains of constitutional supervision if the Armed Forces Tribunal (AFT) is the principal adjudicatory forum.

Union of India v. Major General Shri Kant Sharma relied on the statutory appellate procedure, which created uncertainty, but Union of India v. Parashotam Dass clarified that writ jurisdiction under Article 226 is available against orders passed by the AFT. Recent decisions in Cdr Yogesh Mahla and Lt Col Pandappa Kotagi (2026) also make it clear that Section 14 continues to be a live issue. This article contends that, in order to secure specialised first-instance adjudication, the High Courts need to exercise only a limited form of constitutional supervision.

I. Introduction

Tribunalisation rests on the premise that certain disputes require specialised expertise, while at the same time posing the danger of removing such matters from the jurisdiction of the ordinary courts. In R. Gandhi, the Supreme Court held that Parliament could delegate adjudicatory functions to tribunals, provided that they are empowered to secure judicial independence and specialisation, which are essential aspects of adjudication. Such delegation is thus a redistribution of responsibility within the Constitution, not a substitution of the Constitution’s judicial authority.[1]

The limits of such delegation were explored in L. Chandra Kumar. Tribunals may be established as specialised courts of first instance, but they remain subject to judicial review by the High Courts under Articles 226 and 227, which is not a mere statutory appeal but an integral part of the Constitution.[2]

This tension between the jurisdiction of the ordinary courts and that of specialised tribunals is particularly acute in the military context, where the Armed Forces Tribunal Act, 2007 was enacted to adjudicate disputes relating to commission, appointment, and conditions of service, and appeals from courts-martial. Section 14 of the Act provides for the wide jurisdiction of the AFT while reserving the constitutional jurisdiction of the Supreme Court and the High Courts under Articles 226 and 227.[3][4]

The very existence of the AFT raises the question of when the High Courts can exercise their constitutional jurisdiction over military personnel. The matter became acutely contentious after Shri Kant Sharma, which held that the statutory appeals under Sections 30–31 of the AFT Act are the exclusive remedy against the orders of the AFT, and Parashotam Dass, which rejected the view that the High Courts cannot exercise jurisdiction under Article 226 against AFT orders, while urging restraint in the exercise of that jurisdiction.[5][6]

This article argues that the AFT should be treated as the court of first instance, but that the High Courts should be able to review its orders, distinguishing between questions of law and questions of fact.

II. The Statutory Architecture of the AFT

2.1 The Purpose of the AFT
The AFT Act was adopted to remedy service-condition litigation and provide an independent forum. Its long title specifies two functions: the adjudication of service disputes and the hearing of appeals from courts-martial. This design duality presupposes specialisation in both jurisdictions, with Sections 14 and 15 dedicated to service matters and court-martial matters, respectively. As such, the AFT is a judicial organ that requires military expertise to perform its duties.[7]

2.2 Section 14 and the Constitutional Reservation
Section 14(1) of the AFT Act, which deals with the assignment of jurisdiction, states that the Tribunal will have jurisdiction over service matters previously adjudicated by courts of law, but excludes the jurisdiction of the Supreme Court and the High Courts under Articles 226 and 227. Section 14(2) allows any person aggrieved by a decision relating to service to seek redress before the Tribunal.[8]

By enacting this provision, Parliament did not completely abolish the jurisdiction which the Constitution vests in the Supreme Court and the High Courts, but left ordinary service matters to be adjudicated by the AFT. The scheme is supported by Section 21, which requires that other remedies be exhausted first; Sections 30–31, which provide for appeals to the Supreme Court; and Section 33, which excludes the jurisdiction of civil courts.[9][10]

III. Articles 226 and 227: The Constitutional Foundation of Review

3.1 Tribunalisation and L. Chandra Kumar
The constitutional position of tribunalisation was considered by the seven-Judge Bench in L. Chandra Kumar. The Court endorsed the desirability of tribunals to deal with specialised litigation and decongest the docket, but held that tribunalisation cannot go so far as to replace altogether the jurisdiction of the High Courts enshrined in the Constitution.

The Court’s observations are of great importance: tribunals may be created to adjudicate disputes of a specialised nature and to entertain them as courts of first instance, but their decisions remain subject to the scrutiny of a Division Bench of the appropriate High Court under Articles 226 and 227.[11]

The rationale behind this ruling was that judicial review under Articles 226 and 227 is one of the basic features of the Constitution. It should also be noted, however, that review by the High Court is not meant to act as an additional appellate forum for deciding disputes of fact. Rather, it enables the Court to exercise its constitutional jurisdiction on questions of law and to ensure that tribunals do not exceed their jurisdiction.

3.2 Military Tribunals and Article 33
Military adjudication takes place in a uniquely constitutionally attenuated environment. As observed in S.N. Mukherjee, Article 33 enables Parliament to derogate from Part III rights for members of the Armed Forces for the purpose of maintaining discipline.[12]

The Constitution therefore provides room for a differentiated set of rules, but not total exemption. The balance between the requirements of discipline and judicial oversight necessitates a tailored adjudicative mechanism. For the AFT, such a mechanism has the effect of limiting judicial intervention, but not constitutional obligation.

IV. Drawing the Jurisdictional Line: The Supreme Court’s Treatment of the AFT and Constitutional Review

4.1 Major General Shri Kant Sharma: The Statutory Remedy Approach
In Shri Kant Sharma, the Supreme Court addressed the issue whether a writ petition challenging an AFT decision may be filed directly in a High Court under Article 226, bypassing Sections 30 and 31 of the AFT Act. Highlighting the need to adhere to the statutory scheme and avert anomalies, the Court concluded that a writ petition challenging the order of the AFT should not normally be entertained in view of the statutory appeals machinery.[13]

The decision in Shri Kant Sharma therefore proceeded on a restrictive approach to the direct invocation of Article 226 against AFT decisions, with the focus on the statutory appellate remedy provided by the AFT Act.

4.2 Parashotam Dass: Reasserting Article 226
The issue raised before the Supreme Court in Union of India v. Parashotam Dass was whether a writ petition challenging an AFT order was maintainable under Article 226.[14]

The judgment is notable for taking issue with the assertion in Shri Kant Sharma. The Court clarified that there was no per se bar to the jurisdiction under Article 226, but urged the High Courts to exercise such jurisdiction with restraint.[15]

The judgment thus makes a crucial distinction between the mere existence of jurisdiction and its actual exercise: the availability of jurisdiction under Article 226 does not mean that the High Court must entertain every challenge to an AFT order.

To this end, it is important to read Section 14(1) of the AFT Act, which confers jurisdiction upon the AFT in respect of service matters while expressly excluding from the jurisdiction transferred to the Tribunal the powers exercisable by the Supreme Court and the High Courts under Articles 226 and 227 of the Constitution.

The distinction in their jurisdictions therefore implies different roles for the AFT and the High Courts. While the former adjudicates service matters within its statutory jurisdiction, the latter retains supervisory jurisdiction over questions of legality.

4.3 First Instance Is Not the Same as Constitutional Review
The jurisprudence can be reconciled by distinguishing between first-instance adjudication and constitutional oversight.

The AFT should ordinarily decide the service issue at first instance, guided by the relevant military service regulations and having regard to the service record, as the specialised Tribunal Parliament has mandated to make such decisions.

The High Court’s subsequent jurisdiction over Tribunal decisions is supervisory rather than appellate. The Court will not ordinarily review the evidence and reweigh the factors as the Tribunal did, but will examine the propriety and legality of the decision and its conformity with the Constitution.

This preserves judicial review as part of the basic structure per L. Chandra Kumar, without letting Article 226 become a second appeal, as clarified in Parashotam Dass.

4.4 The Limits of High Court Intervention: Exceptional and Supervisory Review
Recognition of the jurisdiction under Article 226 does not make the High Court a routine appellate authority over the AFT.

Parashotam Dass holds that, while there is no per se bar to writ jurisdiction against the AFT, caution must be exercised; the line between supervision under a constitutional mandate and appellate re-adjudication must be carefully trodden.

The High Court can intervene to correct errors of law or jurisdiction, or to remedy a failure to adhere to the dictates of natural justice, but not to re-examine questions of fact where alternative views are available. To do so would transform the High Court into a second appellate forum, defeating its very purpose. The caution recommended is thus one of moderation, not avoidance.

4.5 2026 Developments: Cdr Yogesh Mahla and Lt Col Pandappa Kotagi
Two recent developments from 2026 highlight the importance of Section 14.

In Cdr Yogesh Mahla v. Union of India (2026 INSC 107), the Supreme Court held that Section 18 of the POSH Act must be interpreted in conjunction with Section 14 of the AFT Act, that a naval officer’s challenge to the Internal Complaints Committee’s finding should be heard by the AFT, and the matter was sent back for reconsideration. The judgment confirms that Section 14 remains operative, while upholding L. Chandra Kumar and Parashotam Dass regarding Article 226.[16]

Likewise, in Lt Col Pandappa Kotagi v. Union of India (Delhi HC, 5 May 2026), the Court examined Sections 14, 21, 30, and 33, and classified the issue as a service matter within the reach of the AFT, thus reiterating that Article 226 does not elevate the High Court to a court of first instance.[17]

V. Specialised Expertise v. Constitutional Supervision

5.1 The Case for AFT Deference
The primary basis for deference is the AFT’s special expertise. Controversies over regulations, discipline, postings, and promotions are peculiar to the military. Parliament therefore established the Tribunal to hear and decide such disputes, and it is in its capacity as a specialised forum that the AFT should be given deference on service matters.

In addition, deference is required on grounds of efficiency. Constant judicial interference by the High Courts would undermine the AFT’s very existence and effectiveness as a specialist tribunal. It must be borne in mind, however, that judicial restraint in such cases does not constitute a general endorsement of military decision-making.

5.2 The Case for Constitutional Supervision
Institutional expertise cannot override constitutional review. L. Chandra Kumar holds that tribunals may be treated as specialised courts of first instance but are nevertheless subject to scrutiny by the constitutional courts, so far as the very exercise of adjudicatory power is concerned.[18]

The constitutional scheme thus retains oversight over specialised jurisdictions. In the AFT context, Parashotam Dass also clarifies that the existence of the Tribunal and its statutory appellate route, as a specialised forum, is not conclusive of the High Court’s jurisdiction under Article 226.[19]

Constitutional supervision ensures that specialisation does not become immunity.

5.3 Deference Must Not Become Abdication
The problem is one of calibrating deference. With too much intervention, the AFT becomes a mere preliminary forum; with too little, Article 226 is rendered illusory.

The High Courts must show deference to findings that are based on service records and military law, but not to orders that go beyond jurisdiction, violate principles of natural justice, or rest on wrong legal principles.[20]

This gives effect to Parashotam Dass. Article 226 does not contemplate appellate jurisdiction for the High Courts and, therefore, the principle of restraint cannot be made a jurisdictional limitation. The model is one of review, not rehearing, and the calibration of deference is thus a matter of degree, not of presence or absence.

5.4 Military Discipline and Judicial Restraint
In the context of military governance, the principle of restraint is further enhanced. Under Article 33, Parliament has the power to restrict fundamental rights for members of the Armed Forces, and S.N. Mukherjee draws attention to the special needs of military adjudication.[21]

However, this does not lessen the need for a cautious attitude to service issues. Although discipline needs to be maintained, it cannot prevail over the jurisdiction conferred by the Constitution. The task is thus to strike a balance between these two considerations.

VI. Where the Present Framework Falls Short

The position left by Parashotam Dass is clear regarding the amenability of AFT orders to Article 226. What is less clear, however, is the scope of permissible constitutional review of any given AFT order, particularly in light of the Supreme Court’s own jurisprudence on direct High Court review of AFT orders.[22]

First, the distinction between a true jurisdictional or legal error committed by the AFT and a disagreement with the Tribunal’s assessment of evidence is not always straightforward. If a High Court finds that an AFT’s assessment of evidence is “erroneous” or “perverse,” should such a finding not be treated as tantamount to appellate interference? Judicial economy demands that such conflation be avoided through caution in linguistic formulation.

Second, while Pandappa Kotagi (2026) rightly notes that a mere assertion of infringement of the fundamental rights under Articles 14 or 16, without more, is not sufficient to warrant High Court review, it is unclear what standard should apply if such an assertion pertains directly to the AFT’s own decision-making process. In other words, what standard of scrutiny is appropriate if the High Court is persuaded that the AFT has infringed a fundamental right?[23]

Finally, while Sections 30 and 31 of the Act provide a remedy directly to the Supreme Court, Parashotam Dass itself provides clarity on the constitutional status of Article 226 petitions challenging the AFT’s orders. Even if Parashotam Dass has resolved the question of constitutional jurisdiction, issues pertaining to the allocation of adjudicative responsibility between the AFT and the High Courts demand an equally rigorous approach to preserve the separation of powers.[24]

The discussion that follows focuses on this question: having established that the High Courts have jurisdiction to review AFT orders, what considerations should guide such review?

VII. Towards a Balanced Model of Review

7.1 AFT Primacy at First Instance
The first principle should be AFT primacy. Service disputes under Section 14 should ordinarily be adjudicated by the AFT at first instance before constitutional review is sought before the High Court. This preserves the expertise of the Tribunal and avoids circumventing the statutory framework. The primacy is a matter of procedure, not of jurisdiction, and it does not bar the constitutional jurisdiction of the High Court.[25]

7.2 Constitutional Review Remains Available
The second principle is the non-exclusion of constitutional review. The powers of the High Courts under Articles 226 and 227 are not ousted by the creation of a specialised Tribunal. As established in L. Chandra Kumar and clarified in Parashotam Dass, the High Courts have the power to examine the legality and constitutional validity of AFT adjudication. This jurisdiction thus ensures accountability within the tribunalised framework.[26]

7.3 A Suggested Intervention Threshold
The threshold for intervention must distinguish between reviewable infirmities and disagreements on the merits. Intervention is warranted when the AFT misreads the law, fails to follow natural justice, adopts incorrect standards, ignores issues of material importance, or suffers from serious constitutional infirmities. However, mere disagreement with findings of fact or with the Tribunal’s assessment of service-related considerations should not, by itself, be a basis for intervention. In this way, constitutional supervision is maintained and the specialised competence of the AFT is respected.[27]

7.4 Institutional Safeguard
Constitutional review should be supervisory, not appellate, in nature. The High Court should address the identified legal or constitutional infirmity and grant an appropriate remedy instead of rehearing the service dispute. This will prevent the AFT from becoming merely an initial step before High Court scrutiny, while ensuring that constitutional review remains an effective safeguard.[28]

VIII. Conclusion

The central issue here is not the compatibility of specialised tribunals with judicial review, but rather their coexistence.

Under Section 14, the jurisdiction of the High Courts is preserved, while AFT primacy at first instance is maintained. L. Chandra Kumar and Parashotam Dass make it clear that the orders of the AFT are subject to judicial review under Article 226.[29]

It is a matter of achieving a balance between the AFT and judicial review: specialisation without immunity, and review without rehearing.[30]

References

[1] R. Gandhi (9th Jt. Sec’y, Madras Bar Ass’n) v. Union of India, (2010) 11 SCC 1.
[2] L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.
[3] Armed Forces Tribunal Act, 2007, long title & § 3(o), No. 55, Acts of Parliament, 2007 (India).
[4] Armed Forces Tribunal Act, 2007, § 14(1), No. 55, Acts of Parliament, 2007 (India).
[5] Union of India v. Major General Shri Kant Sharma, (2015) 6 SCC 773.
[6] Union of India v. Parashotam Dass, 2023 INSC 265; (2023) 5 SCC 786.
[7] Armed Forces Tribunal Act, 2007, long title, No. 55, Acts of Parliament, 2007 (India).
[8] Armed Forces Tribunal Act, 2007, § 14(1)–(2), No. 55, Acts of Parliament, 2007 (India).
[9] Armed Forces Tribunal Act, 2007, §§ 21, 30–31, No. 55, Acts of Parliament, 2007 (India).
[10] Armed Forces Tribunal Act, 2007, § 33, No. 55, Acts of Parliament, 2007 (India).
[11] L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, ¶ 93.
[12] S.N. Mukherjee v. Union of India, (1990) 4 SCC 594.
[13] Union of India v. Major General Shri Kant Sharma, (2015) 6 SCC 773.
[14] Union of India v. Parashotam Dass, 2023 INSC 265; (2023) 5 SCC 786.
[15] Union of India v. Parashotam Dass, 2023 INSC 265; (2023) 5 SCC 786.
[16] Cdr Yogesh Mahla v. Union of India, 2026 INSC 107.
[17] Lt. Col. Pandappa Kotagi v. Union of India, W.P. (C) 5992/2026 (Del. H.C. May 5, 2026).
[18] L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, ¶ 93.
[19] Union of India v. Parashotam Dass, 2023 INSC 265; (2023) 5 SCC 786.
[20] L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, ¶ 93; Union of India v. Parashotam Dass, 2023 INSC 265.
[21] India Const. art. 33; S.N. Mukherjee v. Union of India, (1990) 4 SCC 594.
[22] Union of India v. Parashotam Dass, 2023 INSC 265; (2023) 5 SCC 786.
[23] Lt. Col. Pandappa Kotagi v. Union of India, W.P. (C) 5992/2026 (Del. H.C. May 5, 2026).
[24] Armed Forces Tribunal Act, 2007, §§ 30–31, No. 55, Acts of Parliament, 2007 (India); Union of India v. Parashotam Dass, 2023 INSC 265.
[25] Armed Forces Tribunal Act, 2007, § 14(1)–(2), No. 55, Acts of Parliament, 2007 (India); L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.
[26] Union of India v. Parashotam Dass, 2023 INSC 265; L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.
[27] Armed Forces Tribunal Act, 2007, § 14(1), No. 55, Acts of Parliament, 2007 (India); L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.
[28] Union of India v. Parashotam Dass, 2023 INSC 265; L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.
[29] Cdr Yogesh Mahla v. Union of India, 2026 INSC 107; Lt. Col. Pandappa Kotagi v. Union of India, W.P. (C) 5992/2026 (Del. H.C. May 5, 2026).
[30] L. Chandra Kumar v. Union of India, (1997) 3 SCC 261; Union of India v. Parashotam Dass, 2023 INSC 265.