Agnipath a policy decision, can’t interfere, says Delhi High Court; dismisses petitions challenging the controversial scheme

The high court termed the scheme a "well thought out policy decision", holding it in larger public and national interest.

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THE Delhi High Court on Monday dismissed all pleas challenging the Agnipath scheme, introduced by the Union government last year for the recruitment of soldiers below the rank of commissioned officers on a four-year contract, calling it a "well thought out policy decision".

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad, while upholding the validity of the tour-of-duty style scheme, accepted the Union government's primary submission that the scheme is essentially a policy decision taken in exercise of its sovereign functions and, hence, is not amenable to judicial review.

On December 15 last year, the court had reserved its verdict in the matter.

Defending the scheme, the Union government had contended before the court that it felt the need to establish more youthful, agile, and physically fit armed forces in light of "the peculiar border situation and incessant threats made by hostile neighbouring nations to infiltrate the border of India" and the diverse, "unpredictable and non-linear" terrain of the country. The court agreed with the submission that a "leaner and fitter armed force" is needed.

The high court had heard two sets of challenges; one contesting the constitutional validity of the scheme and the other against the supposed prejudice caused to some petitioners by the introduction of the scheme. The grievance of the second set of petitioners was that they went through the recruitment process for the armed forces that was prevalent prior to the scheme and were shortlisted, but were not appointed because the Agnipath scheme had been introduced in the meantime.

One of the petitioners, Kumud Lata Das, had contended that the service period of 3.5 years (excluding the training) under the scheme may be too short in the Indian milieu to gain the physical and psychosocial experience of having served in the armed forces. She further submitted that the life insurance cover, as envisaged under the scheme, is less than that of a regular soldier.

The non-existence of a provision on pension, which other soldiers receive after serving a set amount of years, was also questioned by some petitioners, but was rejected by the high court on the ground that the scheme is voluntary in nature.

It was also argued that the government had failed to make provisions for the meaningful employment of agniveers — volunteers who serve under the Agnipath scheme — after the conclusion of their nearly four-year service. The court rejected this contention too, on the basis of the government's submission that it seeks to extend entrepreneurship and financial schemes such as Startup India and Pradhan Mantri MUDRA Yojna to agniveers.

Policy decision of the government

"A perusal of material on record shows that the scheme is a well thought out policy decision by the Government of India," the high court observed in its ruling.

The Supreme Court's judgment in State of Orissa versus Gopinath Dash (2005) was cited by the high court to emphasise the laid down law that 'policy decisions must be left to the Government'. In that case, the court had held, "In the matter of policy decisions or exercise of discretion by the government so long as the infringement of fundamental rights is not shown, the courts will have no occasion to interfere and the court will not and should not substitute its own judgment for the judgment of the executive in such matters."

The Supreme Court's ruling in Centre for Public Interest Litigation versus Union of India (2016) was also cited, through which the court had held, "Minimal interference is called for by the courts, in exercise of judicial review of a government policy when the said policy is the outcome of deliberations of the technical experts."

Being bound by the principles set out in the above judgments and others, the high court noted, "Unless a policy decision taken by the government is demonstrably capricious or arbitrary or if it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution, this court is not to question the propriety of such a policy decision," while refusing to interfere with the Agnipath scheme.

The bench had disclosed its inclination on the matter in a December hearing in which it observed that it does not possess the expertise to evaluate the Agnipath scheme, which the Union government submitted was formed after high-level discussions with the army, air force and navy. "The government is saying that we want a young army and therefore the experts have formed the scheme. We (judges) are not experts… It is not in our domain," the bench had observed orally.

Neither estoppel, nor legitimate expectation

A second challenge to the Agnipath scheme pertained to the non-completion of recruitment process under the Common Entrance Examination for the army and a December 2019 notification for the air force. The question was whether the Union government's action to introduce the scheme before the conclusion of the recruitment process attracted the principles of promissory estoppel and legitimate expectation.

Advocate Prashant Bhushan, for some of the petitioners, argued that the actions of the Union government are hit by the principle of promissory estoppel as the petitioner, upon being selected, decided to forgo other job opportunities to their detriment.

It was also contended that the principle of legitimate expectation, which is invoked to hold public authorities accountable to ensure that they uphold their word, mandates the completion of the recruitment process in the present case.

The Union government, however, argued that it is a settled position of law that no vested rights could possibly have accrued in favour of the petitioners during the recruitment process.

The high court in its judgment refused the invocation of the above principles, stating that "nobody has an indefeasible right to claim employment", and even individuals merely waiting to be issued appointment letters cannot claim to have a vested right to gain employment.

"… [O]n account of the larger public interest weighing strongly in favour of the Scheme," the high court did not find the scheme or actions of the Union government to be "arbitrary, capricious or devoid of reason". On the contrary, the court held, "it squarely falls within the ambit of 'public interest'."

"We have extensively gone through the Agnipath scheme, and can conclusively state that this scheme was made in national interest, to ensure that the armed forces are better equipped," the court concluded, while dismissing the various writ petitions.

Click here to view the Delhi High Court's full judgment in Harsh Ajay Singh versus Union of India & Ors. (2023/DHC/001414).