WING COMMANDER RAJIV ARORA Vs. UOI

JUDGEMENT

(1.) Jurisdiction is one of the foremost considerations in the nature of judicial decision making. Jurisdiction is a concept which goes to the very root of the lis that comes up for determination between the parties. It is commonly understood as court's power to decide a case or issue a decree in terms of basic rule of jurisdiction. It is explained as Coram Judice. It is relatable to a position outside the court system and prescribes the authority of the court within the system. The extra-ordinary jurisdiction vested in the court under Article 226 of the Constitution of India refers to exclusive constitutional jurisdiction i.e. power of the court to adjudicate a class of actions to the exclusion of other courts. Complete jurisdiction of a court besides territorial, relating to cause of action or parties also may raise question in regard to the scope of jurisdiction to be exercised by the court in relation to the controversy arising particularly in exercise of its writ jurisdiction. Besides this being a constitutional jurisdiction, it is also supplemented by jurisdictio emanata. The court while exercising such jurisdiction would normally enlarge the scope of its jurisdiction so as to do justice between the parties so far as exercise of such authority is not opposed to a statute and is in conformity to the settled canons of constitutional jurisprudence. Boni judicis est ampliare jurisdictionem is subject to the limitations of law and particularly discretio est discernere per legem quid sit justum. This is true scope of exercise of jurisdiction in relation to the matters of jurisdiction. The court would amplify its jurisdiction to do justice but only where it is so permissible in law and is not beyond the constitutional mandate of specified writ jurisdiction. Jurisdictional discretion is a science of understanding of discern between shadows and substance, between equity and colourable glosses and pretences. Interference in the prior may not be necessary while in the latter, it may be correctly invoked particularly when it breaches the law of the land. A power vested in a statutory body can never be unfettered. It should be exercised according to law and guided by relevant considerations and not irrelevant materials. If any power is conferred on any authority to enable that authority to discharge its duties to a citizen or to the public at large, that authority cannot refuse to exercise that power and obligation to comply with the statutory provisions which would be mandatory. Where such mandatory obligations or provisions of law are violated, the court would expand its jurisdiction as justice would so demand. When the law refers to discretion of the court, it obviously means that where a thing is left to any Judge or Magistrate to be done to his discretion, the law intends it must be done with sound discretion and according to law. It is a power to decide within the limits allowed by positive rules of law and generally to regulate matters of procedure and administration. The discretion more particularly in judicial system has been explained as follows:- "Discretion" means, when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to confine himself. [Lord Halsbury, L.C. Sharp v. Wakefield, (1891), 64, LT Rep 180 (1891) Ap Ca 173] The very word discretion standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. 334=10 Bom LR 821=3 IC 361. The word "discretion" in itself implies vigilant circumspection and care; therefore where the legislature concedes wide discretion it also imposes a heavy responsibility. (1933 Cr C 175=AIR 1933 Sind 49.) Discretion, when applied to a Court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, but legal and regular. Lord MANSFIELD, Case of John Wilkes (1763), 4 Burr Part IV, 2539.

(2.) We have referred to the above concept of judicial discretion in order to examine the scope of judicial intervention in General Court Martial proceedings prior to disposal of post-confirmation petition by the competent authority. Section 109 of the Air Force Act, 1950 (hereinafter referred to as 'the Act') provides for three kinds of Court Martial for trial of a member of the Force. Once the Court is convened in terms of Section 110 of the Act, it has special and a specific jurisdiction to complete the trial in accordance with the provisions of the Act and the Rules framed thereunder. Irrespective of the nature of the Court Martial, the scope for interference is very limited. The Act and the Rules are a Code within itself and provides for a pre and post remedies to the findings and convictions by General Court Martial. In other words, it is a self-contained Code. Various provisions grant certain specific protection to the accused right from the commencement of the trial till its conclusion. He could raise objections and challenge to the convening and constitution of the Court as well as jurisdiction, with a right to plead guilty or not guilty. These protections available to the accused show that the concerned authorities as well as the Court has to comply with certain requirements of law which are mandatory in nature and non-compliance thereof, in some cases may even seriously prejudice the very initiation of the trial. The scheme of the Act clearly demonstrates the legislative intent for proper dispensation of justice to the accused during the course of trial by the General Court Martial. Despite such specific provisions, the power of judicial intervention of the High Court in terms of Article 226 of the Constitution of India can hardly be contained. The Court could interfere with the commencement and continuation of the General Court Martial wherever, in its discretion, the Court is of the opinion that there has been violation of law, principles of natural justice and other patent legal errors which have prejudicially affected not only the trial, but more particularly the protections available to the accused under the specific provisions. There are no exclusionary clauses, specifically or even by necessary implication, excluding the jurisdiction of the High Court. In fact, it is a settled principle of law that the jurisdiction of the High Court under Article 226 of the Constitution of India cannot be curtailed or limited as it is the very foundation of administration of justice, which is the primary object of the Indian Constitution. When certain matters are committed to jurisdiction of a Tribunal or authority and its determination is made finally and civil courts are expressly debarred in exercising of jurisdiction over those matters, the question of fact and law, both would thus fall in the exclusive jurisdiction of that Tribunal or authority but the jurisdiction of the High Court would still be open, of course, its scope would have to be somewhat limited.

(3.) Within this limited scope fall the cases of action ultra-vires the statute, it being a nullity and violative of fundamental principles of judicial procedure or natural justice affecting prejudicially the entire process. Even if a statute confers upon the Authority or the Tribunal special jurisdiction in relation to procedure and finality, still the High Court's jurisdiction of judicial review can hardly be excluded. The basic issue relates to the scope of jurisdiction. The Air Force Act is a special legislation applicable to a class of persons and is primarily intended to maintain high standards of discipline Without impinging upon the basic rule of law. It is also a settled principle that the fundamental or basic rights of the members of the Air Force are protected except in the restricted events specified in the constitutional provisions itself. There is nothing in the provisions of the Act which would require the Court to read any kind of exclusion of supervisory or extraordinary jurisdiction as the presumption normally would be against exclusion of such jurisdiction.