Judicial review by courts in armed forces matters is very limited

In so far as the matters pertaining to Armed Forces (service matters, ie., transfer/posting, etc.,), the judicial review of courts are very limited and narrow.  Judgement of Madras High Court in this regard is reproduced below :-

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 30.01.2013

CORAM:

THE HONBLE MR. JUSTICE K.CHANDRU

W.P.No.2411 of 2013
&
M.P.Nos.1 and 2 of 2013




Abani Ranjan Bhuyan .. Petitioner

Vs.

1. The Chief of the Air Staff
Air Headquarters, Vayu Bhavan
New Delhi 110 011

2. The Air Officer Commanding
Air Force Record Office
Subroto Park
New Delhi 110 010

3. The Air Officer Commanding
No.23, Equipment Depot
Air Force Station Avadi
IAF Avadi Post
Chennai 600 055 .. Respondents






Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the entire records leading to the impugned order (Signal) No.AFRO/RDB/458 Jan/03 dated 3.1.2013 passed by he 2nd respondent  and quash the same and direct the respondents to consider the representation of the petitioner, dated 10th Jan 2013, pending before the 2nd respondent and not to post out the petitioner from the present unit till 12th June 2013 or the petitioner may be given discharge from service with immediate effect.



O R D E R

The petitioner is working in Indian Air Force  Station at Avadi.  He is  in the post of Sergeant and by order dated 3.1.2013, he was transferred to Bhuj Air Force Station in Gujarat State. Challenging the said order, the Writ Petition came to be filed.

2. In the Writ Petition, two grounds were urged.  The first ground was that the petitioner was not given sufficient time as done in the other case and it was done violative of statutory Rules.  Secondly, he was permitted to do Master in Social Work from Bharathiar University and the final examination is scheduled and it is on this ground, the Writ Petition came to be filed.

3. It must be noted that in respect of the service matters in relation to the persons who were subject to Army Act, Navy Act and Air Force Act,  the matter was to be heard by an Armed Forces Tribunal constituted under Section 4 of the Armed Forces Tribunal Act, 2007.  The jurisdiction, power and authority to deal with service matters in terms of Section 14 of the Act, are exclusively vested upon the Tribunal constituted for the said purpose.  The term 'Service matter' is defined under Section 3(o) of the Armed Forces Tribunal Act.  Insofar as the transfer and posting including change of place or unit whether individually or in part of the unit, the Tribunal is precluded from going into the same, as it has been excluded from the definition of the term 'service matter'.  Therefore, when the Parliament constituted  the said Tribunal to deal with the members of the Armed Forces, it was given power to deal with service matters except transfer and posting, which undertakes the fact that with relation to member of Armed Forces, the question of transfer and posting cannot be the subject matter of the judicial remedy by the Tribunal.  When Parliament gives limited power to the Tribunal in terms of service matter, which excludes the Tribunal  from dealing with transfer and posting, it does not automatically follow that this Court sitting under Article 226 of the Constitution can review what was excluded from the term 'service matter' under Section 3(o) of the Armed Forces Tribunal Act.

4. Even otherwise in relation to the members of the Armed Forces covered by the three Acts set out above, the power of the court to judicial review regarding transfer came to be considered by the Supreme Court in Major General J.K.Bansal vs. Union of India and others reported in (2005) 7 SCC 227, and it has been held as as follows:

"12.  It will be noticed that these decisions have been rendered in the case of civilian employees or those who are working in public sector undertakings.  The scope of interference by the courts in regard to members of armed forces is far more limited and narrow.  It is for the higher authorities to decide when and where a member of the armed forces should be posted.  The courts should be extremely slow in interfering with an order of transfer of such category of persons and unless an exceptionally strong case is made out, no interference should be made."

5. In the light of the above, there being very limited judicial review on such matters, this Court is not inclined to interfere with the order of transfer on the grounds set set out.  There is no case made out.  Hence, the writ petition stands dismissed. No costs.  The connected Miscellaneous Petitions are closed.

SC orders v-recording of new drug clinical trials

The order to video record five new trials follows petitions complaining about lax implementation of the clinical trial regime

NEW DELHI, October 22: The Supreme Court on Monday ordered the government to video record clinical trials of five new drugs, making it tougher for multinationals to shirk responsibility when testing of their patented medicine reacts adversely on patients.

 

A bunch of petitions in the apex court had complained about lax implementation of the clinical trial regime and alleged that multinational manufacturers had exploited the loopholes to make India the testing ground of their new drugs.

 

Countering senior advocate Colin Gonsalves and Sanjay Parekh who argued for halting clinical trial of 162 new drugs permitted by the Drug Controller General till their usefulness for India was established, additional solicitor general Sidharth Luthra said the government had established a three-tier scrutiny system comprising New Drugs Advisory Committee, technical committee and apex committee to examine applications for clinical trials in India.

 

A bench of Justices RM Lodha and SK Singh said as far as the five new drugs permitted for clinical trial after the three-tier examination of its necessity were concerned, it would like patients undergoing clinical trials to be video recorded and the recordings preserved. It also asked the government to keep the identity of patients who were video recorded confidential.

 

Since the remaining 157 drugs were cleared before the three-tier system was put in place, the court ordered that they be subjected to scrutiny by technical committee and the apex committee keeping in mind three parameters - assessment of risk against benefits, innovation value compared to the existing options and medical need in the country.

 

The court said it would consider the petitioners' plea for halting the ongoing clinical trial for these 157 drugs after getting a report from the technical committee and the apex committee. Petitioners cited the parliamentary committee report on clinical trials to argue that norms were followed in breach and that most of the drugs under trial would benefit the multinationals.

 

Taking into account the petitioners' concern, the bench asked Luthra whether the government had information as to how many drugs under clinical trial in India were patented outside. "The clinical trials conducted in India must help us and not others. The apprehension of the petitioners must be allayed reasonably," it said.

 

"With regard to the suggestions received by the central government from various stakeholders — National Human Rights Commission, advocate Sanjay Parekh, SAMA Resource Group for Women and Health & Locost Standard Therapeutics and Indian Society for Clinical Research and the central government's views thereon shall be considered by this court on December 16 along with pending applications."

 

Source & Credit: Dhananjay Mahapatra, The Times of India