New Delhi: Addressing a “shocking” backlog of 5,612 Armed Forces Tribunal orders that were unimplemented until July 2024, the Delhi High Court Monday ruled the fact that the tribunal lacks authority to punish disobedience of its final orders should not mean that its orders are lost in oblivion and soldiers have to remain embroiled in litigation. The issue of implementation can be taken up by the high court under the Contempt of Courts Act.
More than a decade after the Armed Forces Tribunal (AFT) first described itself as “handicapped” by the absence of civil contempt powers, the Delhi High Court order highlighted an enforcement crisis that has shadowed the tribunal since its creation under the Armed Forces Tribunal Act, 2007.
AFT, with 11 benches across India, was set up in 2009 to adjudicate disputes and complaints regarding commission, appointments, enrolment and conditions of service for persons subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950. It Also provides for appeals arising out of orders, findings or sentences of courts martial held under these 3 Acts and for related matters.
However, as the high court said, “the fact that 5,612 orders of the AFT were unenforced makes it clear that, absent any sanction or method of enforcement, personnel of the Armed Forces, who lay down their lives for the country without a moment’s hesitation, can never be certain that, even if they succeed in their litigation in the AFT, any relief would be forthcoming.”
In a detailed 39 page judgment, a bench of Justices C. Hari Shankar and Om Prakash Shukla, said, “If the disobedience is contumacious (wilful), and if it interrupts or disturbs further proceedings before the AFT in the manner envisaged hereinabove, it would constitute contempt within the meaning of Section 19(1), and the contemnor (individual or entity guilty of contempt of court) would be liable to punishment as envisaged in the said provision.
“Disobedience of a final order passed by the AFT would not, however, attract Section 19, as, with the passing of the final order, the proceedings before the AFT come to an end, and any future disobedience of the said order cannot, therefore, result in interruption or disturbance of the proceedings before the AFT,” the court said.
Chequered history of issue
The question of whether the AFT had adequate teeth to enforce its orders has long been debated. From the very early years after its establishment under the 2007 Act, the Tribunal repeatedly pointed out that it was “handicapped” by the absence of civil contempt powers—an omission that meant authorities could ignore its orders with impunity.
In a landmark 2011 hearing involving a decision in favour of Naib Subedar Fayaz Khan, the then AFT chair observed that because the Act only conferred criminal contempt jurisdiction, the tribunal could not issue a civil contempt to “get our orders executed,” leaving compliant victims at the mercy of the executive. At the time, resistance from the three service headquarters and a parliamentary panel resulted in the AFT being denied full civil contempt powers, rendering it largely toothless in compelling authorities to act.
In January 2011, the AFT publicly flagged a serious enforcement gap in its statute, with its then chairperson Justice A. K. Mathur lamenting that the tribunal was “handicapped because we do not have powers to issue a civil contempt to get the orders of the tribunal executed”.
In the context of the Naib Subedar Fayaz Khan case, Justice Mathur described the situation as a “very strange state of affairs”, noting that despite repeated notices to the Ministry of Defence and other authorities, the tribunal’s orders remained unimplemented because the statute only conferred criminal contempt powers under Section 19 and lacked express civil contempt jurisdiction.
“It is sad that the power of civil contempt for getting the tribunal’s order executed has not been given in the Act… we feel helpless that this tribunal cannot come to the rescue of persons despite the orders passed by the tribunal,” he told the court, adding that recommendations for amendment had long been sent to the government with no result.
Even procedural orders from the tribunal in 2015 on execution and enforcement underscored these limitations, showing that litigants often had to resort to separate execution applications because the statutory framework did not clearly empower the tribunal to enforce its own judgments.
The AFT posed this question to its chairperson in a 2015 order: “Whether a wilful disobedience or non-implementation of its order may amount to causing any interruption or disturbance in the proceedings of this tribunal thereby attracting action for contempt, under Section 19 of the Act…?”
“It can, therefore, be easily concluded that this tribunal does not have power to punish civil contempt and further that the power conferred on the Tribunal to punish criminal contempt as contemplated by Section 19 does not include the power to punish disobedience to or non-execution/non-implementation of any order passed by the tribunal,” said the same 2015 order.
The 2024 judgment, delivered by a full bench of the AFT concluded that the tribunal possesses the statutory authority to punish contempt of itself and its orders to ensure it remains “effectively functional” and upholds its “majesty and dignity”.
Post this, a writ petition was filed in the Delhi High Court which required it to gauge the reach of AFT in ensuring implementation of the orders passed by it.
Section 19 and Rule 25 & HC as the ‘safety net’
The controversy in the Delhi High Court again centred on two main legal pillars: Section 19 of the AFT Act, which allows punishment for “interruption or disturbance” in proceedings, and Rule 25, which recognises the tribunal’s “inherent powers” to give effect to its orders.
The AFT had previously argued that repeated non-compliance by authorities constituted an “interruption” of its functional utility, thereby attracting contempt action under Section 19.
However, the high court rejected this “adventurous interpretation”, stating that Section 19 is exhaustive and does not explicitly use the terms “civil contempt” or “criminal contempt”. The bench also clarified that while the AFT can punish insults or disturbances during active hearings, it cannot extend this power to the defiance of a final judgment because, legally, the “proceedings” have already ended.
To ensure that AFT orders are not rendered “unenforceable”, the high court ruled that disobedience of a final AFT order attracts the contempt jurisdiction of the high court itself under Section 10 of the Contempt of Courts Act.
“Decisions taken by judicial, or even quasi-judicial authorities, are not intended to be consigned to oblivion,” the bench noted, emphasising that the high court maintains judicial superintendence over the AFT to prevent a “sorry state of affairs” where soldiers win their cases but receive no relief.
Importantly, the court observes that while the term “subordinate” is an “anachronistic” way to refer to judicial authorities lower in the hierarchy and is considered “disrespectful to the constitutional position” of such judges, the term must be “liberally and purposively interpreted” in the context of enforcement. The order clarifies that the “mischief that Section 10 of the Contempt of Courts Act seeks to address is, clearly, the possibility of orders of ‘subordinate courts’ being disobeyed” when that court lacks its own statutory power to punish the defiance.
Consequently, even though the AFT is not strictly a court subordinate to the high court in a traditional sense, the high court’s power of judicial superintendence ensures that disobedience of any final order or judgment of the AFT would, however, attract Section 10 of the Contempt of Courts Act, and be punishable.
Limits on ‘inherent powers’
While the court acknowledged that the AFT has “practically unbridled” inherent powers under Rule 25 to ensure its orders are implemented—such as imposing service sanctions or proceeding against an officer’s assets—it drew a firm line at incarceration.
The court held that the AFT cannot deprive any officer of their liberty (imprisonment) for disobeying an order under Rule 25, as Article 21 of the Constitution requires such deprivation to follow a specific “procedure established by law”, which the AFT’s current rules do not provide. Furthermore, the court clarified that the AFT is not a “Court of Record,” a status reserved primarily for the high courts and the Supreme Court.
The bench concluded with a “passing comment” regarding the government’s role, stating that the failure to implement decisions without a legal challenge is “completely unacceptable”.
“Our Armed Forces are meant to protect our lives and our borders, and cannot remain embroiled in litigation,” the judges stated, urging authorities to either obey AFT orders or challenge them through proper judicial review rather than leaving them unimplemented.
Commenting on the judgment, advocate Major Sudhanshu Pandey, who was part of the proceedings (representing numerous retired and serving officers seeking implementation of previous AFT judgments) before the tribunal in 2024, explained to ThePrint that Section 19 of the AFT Act only empowers the tribunal to punish a person who obstructs or impedes the proceedings during a hearing. “The provision contemplates physical obstruction or disturbance in the course of proceedings. It does not create a constructive or post-judgment contempt jurisdiction,” he said.
“The tribunal was attempting to treat non-compliance as disobedience amounting to obstruction of justice. The high court has drawn a distinction between ‘disobedience’ and ‘non-compliance’ and held that post-judgment enforcement does not fall within the tribunal’s contempt power,” he said.
He described the judgment as a strict interpretation of the statute. “The high court has applied the law as it stands. Courts cannot legislate by interpretation. If contempt power has not been expressly conferred, it cannot be assumed.”
The advocate noted that the bulk of pending matters involve financial benefits—pension, disability benefits, increments, and pay-related issues. “In disciplinary matters, the government usually challenges the order if it disagrees. But where financial liability is involved, implementation is often delayed.”
Referring to the over 5,000 unimplemented AFT orders noted in court, he said, “a major reason for delay is the requirement of concurrence from the Ministry of Defence (finance department).”
He pointed to systemic issues within the Ministry of Defence. “While service headquarters may take decisions, concurrence of MoD (finance) is required in many cases.” That concurrence, he said, often becomes the “bottleneck”. There is no single identifiable authority responsible for compliance, leading to files moving across multiple tables.
“If the Armed Forces are a disciplined force, their litigation management must also be disciplined,” he said. “If the government disagrees with a judgment, it should challenge it. But allowing orders to remain unimplemented for years forces veterans to repeatedly litigate for the same relief.”
(Edited by Viny Mishra)