Feel free to contribute on burning issues concerning the armed forces. Contributions would be acknowledged - Use the 'Comments' tab or email navdeepsingh.india[at]gmail.com. No operational/business/commercial matters to be discussed please. Legal advice/litigation related issues would strictly NOT be published or discussed or entertained. Information on this blog is opinion based and is neither official nor in the form of an advice. This is a pro bono online journal in public service related to issues, policies and benefits, and the idea behind it is to educate and not to create controversy or to incite. Be soft in your language, respect Copyrights.

Sunday, July 5, 2015

Transmission of Signals from the Supreme Court for Military Pensioners

Those who have followed the blog closely, especially this post of 27 May 2015, most of the verdicts on pension anomalies emanating out of the 6th Central Pay Commission stand decided in favour of pensioners by the Supreme Court, both for military as well as civilian retirees.

An update on the same is as below:

Removal of pension anomaly from 01-01-2006 rather than 24-09-2012 for pre-2006 retiree Central Government pensioners: Appeal filed by the Govt stands dismissed by the Supreme Court in March 2015. 

Removal of pension anomaly between Honorary Naib Subedars who retired prior to 01-01-2006 vis-a-vis those who retired after 01-01-2006: Appeal filed by the Govt stands dismissed in May 2015. An unfortunate saga indeed

Removal of pension anomaly between Viceroy Commissioned Officers and post-independence Honorary Commissioned Officers who retired prior to 01-01-2006: Appeal filed by the Govt stands dismissed in May 2015.

This invariably would result in multiple execution applications before the Armed Forces Tribunal since most of these verdicts had not been implemented by the Army HQ/Ministry of Defence as per the time prescribed even in those cases where there was no stay by any higher court.

It would be in fitness of things if the Army HQ (in conjunction with Record Offices) keeps lists of affected personnel ready so as to grant government sanction at the earliest to avoid complications as already experienced in the cases of disabled soldiers upheld by the Supreme Court. This is also a good opportunity to oil the implementation machinery well and bring it in line with the law of the land. Six years after the AFT was created, it is now clear that disregard of judicial orders may not be taken so lightly, as was the case till now.

Regular updates shall now also be available on my Facebook page. 

Wednesday, June 24, 2015

Some myths doing the rounds, and the truth thereon

Since many improbable queries are being raised on One Rank One Pension, more so on social media, let me attempt to clarify some of these again to put an end to misinformation, especially for those not connected with the Armed Forces who may be unaware about the modalities of the concept.

Here are the three biggest myths doing the rounds on Social Media.


Myth No 1: Since OROP is to cater for early retirement, why should those officers who retire at 60 be granted OROP?

Truth: Nobody in the military retires at 60 except Lieutenant Generals. Civil employees retire at 60.



Myth No 2: Pay progression in civil service is faster and hence pension is higher but civil services cannot be compared with defence services and when an officer joins up, he/she knows what he/she is getting into.

Truth: Though many civil services had a faster career graph, the situation has gravely deteriorated since the 6th Central Pay Commission (w.e.f 01-01-2006) when Non-Functional Upgradation (NFU) was introduced for Organised Group A Civil Services. The said scheme provides that all officers of such civil services, if otherwise eligible, shall be granted the higher pay of promotional grades, even if they are not promoted. Hence, by default, officers who are unable to be promoted in their cadres are now retiring with the pay of an Additional Secretary to Govt of India (HAG) which results in (almost) de facto OROP. This concept of NFU has been denied to the defence services but remains applicable to civil officers working shoulder to shoulder even under the Ministry of Defence. For example, today, a Chief Engineer (CE) of the Military Engineering Services who may be a military officer of the rank of Brigadier may have his Civilian Superintending Engineer (SE) who would be serving under him, drawing the pay of a Lieutenant General under NFU and hence also the pension of a Lt Gen. So the boss gets a lower pay and pension than his subordinate!



Myth No 3: Personnel of the forces are granted employment on the civil side after being released from the Army, why then are they demanding OROP?

Truth: Absolutely untrue. There is no job protection for defence personnel after they are released from the forces, and by the way, they start retiring at the age of 34 years. Most of the personnel of lower ranks end up guarding our neighbourhood ATMs and a minuscule percentage is given the opportunity of government employment but much below their erstwhile military status and at Group D levels at times. Junior Commissioned Officers (JCOs) who are Group-B (formerly known as Class-II) gazetted officers are being offered appointments below the rank of Sepoy. To make this more understandable for those on the civil street, it is like offering a job profile below the rank of Constable to a recently retired Deputy Superintendent of Police. Is this fair?


Those who may like to know more about One Rank One Pension and related issues may like to peruse my two recent opinion pieces on the subject:



Monday, June 15, 2015

Tables issued for implementation of enhancement of disability and war injury elements of pension based on minimum of pay within the pay band for each rank, rather than minimum of pay-band itself

As most readers would be aware of this post of 21 April 2015, five months after similar orders were issued for civilians, the Ministry of Defence had enhanced the disability and war injury elements of disabled and war disabled defence pensioners based on the fitment of minimum of pay within the pay-band for each rank, rather than the minimum of pay-band itself.

Though the benefits were granted from September 2012, according to the decision of the Central Administrative Tribunal, the Armed Forces Tribunal and the Delhi High Court, as upheld by the Supreme Court, the benefits are actually to flow from January 2006. The file for extension of the benefits from the correct date is currently pending with the Department of Pension and Pensioners’ Welfare.

Meanwhile, the office of the Principal Controller of Defence Accounts (Pensions) has issued the tables for implementation of the above mentioned orders of enhancement of casualty awards and the same can be accessed and downloaded by clicking here.


Please note that this letter has NO relation with the matter related to broad-banding of disability percentage for cases of release on completion of terms/discharge/retirement/superannuation. 

Sunday, June 7, 2015

My op-ed for the 'Deccan Chronicle' and 'The Asian Age' on Capt Kalia's case and institutional malaise


Unabridged version of my op-ed that has been published in the Deccan Chronicle and The Asian Age today (07 June 2015):


Captain Kalia, pain, agony and an institutional malaise

Navdeep Singh


Seldom have I picked up a pen to write an opinion with a hazy mind. Hazy not because I am unclear about the issue at hand, but because I feel I have no solutions to recommend, and those who were tasked and legitimately expected to find an answer many moons ago, have washed off that responsibility and thrown the ball, literally, in the court of Courts.

Late Capt Saurabh Kalia’s case, the casualness shown thereon and the quandary, nay inertia, over invocation of the jurisdiction of the International Court of Justice (ICJ), paradoxically, emanated from a different matter, and that was a Public Interest Litigation filed by the Late Lieutenant General Jagjit Singh Aurora in 1999 before the Gujarat High Court seeking a declaration that 54 Prisoners of War believed to be in Pakistani jails may not be treated as “presumed dead” but “on duty” for all purposes till the notional date of retirement and their kin accordingly be released all benefits of such declaration and that the Government take the issue to international fora for justice.

Accepting his plea in 2011, the Gujarat High Court, in a 57 page decision, recording chilling details of the travails of such Prisoners of War held in Pakistani detention which could bring a tear to the toughest eye, directed the Government to grant all service and retirement benefits by treating such Prisoners of War as alive, and more importantly, in Paragraph 27(a) directed the Government of India to approach the ICJ on the issue of non-release of our Prisoners of War.

It was similar relief that the father of Capt Saurabh Kalia had sought from our Government, and having failed so, also approached the Supreme Court for respite.

However, what most are not aware of is, that during the currency of the last regime, on 02nd May 2012 to be precise, rather than taking steps towards implementing the judgement, the Government of India appealed against the decision of the High Court before the Supreme Court and also obtained a stay on the directions on approaching the ICJ.

The stand of the Government was hence clear on the subject, whether it is our Prisoners of War or the ghastly incident of Capt Kalia’s torture- the ICJ could not be approached since its jurisdiction is consent-based and both parties to the dispute need to permit the lis being adjudicated by the said Court. There is some truth in such a claim and agreeable is the suggestion that the hands of Government are somewhat tied, but the question arises whether it was prudent for the Government to oppose such a claim in the Supreme Court or file an appeal in General Aurora’s case? The answer is absolutely in the negative.

By opposing genuine and legitimate claims of the families of soldiers who have suffered the horrors of war, the Government does not send the right signals to the nation at large. In fact, it is also not entirely accurate that the Government cannot approach the ICJ without the consent of Pakistan. There was a way out. Rather than opposing the plea in the Supreme Court, the Government of the day could have invoked the jurisdiction of the ICJ under the unilateral application clause without the consent of Pakistan within the meaning of Paragraph 5 of Article 38 of the Rules of the ICJ (Forum Prorogatum) under which the ICJ would have transferred the petition to Pakistan for its response to the same. There are only two instances where such an approach has finally succeeded but at least the bona fides of the Government of India would have been clearly enunciated thereby bringing the horrendous war crime into sharp global focus, even if it had hypothetically resulted in a rejection at the ICJ ultimately. The saving grace though is the pleasant news that India’s current no-nonsense Minster of External Affairs has decided to render a relook at the entire issue.

Which brings me back to a very pertinent question, and that is, whether the issues related to the dignity and welfare of martyrs, their families, military veterans, military widows and even serving soldiers should shuttle between protests, distrust, disdain and from pillar to post to Court, or should the Government itself be sensitive enough and ensure that the disquiet is relieved through a temporal unguent?

The last few years have not only seen families of martyrs up in arms but also the Government, especially the Ministry of Defence, taking a stand contrary to the genuine claims of the military community including disabled and war disabled soldiers by filing thousands of appeals right up till the Supreme Court against, at times, just a few hundred rupees of benefits granted to them by Courts and Tribunals. The Government also placed a plea before the Supreme Court, and got a favourable verdict, that poor soldiers, veterans and widows aggrieved by the decisions of the Armed Forces Tribunal (AFT) would not be able to challenge the same before the High Courts, thereby snatching away their fundamental rights which are otherwise guaranteed to every citizen of the Country. The only way to question AFT verdicts now is to approach the Supreme Court directly but the same is permitted under law only if the case involves a “point of law of general public importance” and which approach anyway is unaffordable and inaccessible for the petty amounts and issues that most of such litigation involves.

Though the current Government has tried to improve the interface with the military community, things are not moving as swiftly as expected since the perilous hold of the lower bureaucracy in the Central Secretariat remains the same, and then, as we know, while political executive is variable, the babudom is a constant. If the Government is serious about assuaging sentiments, then it should no longer be business as usual.

I shall now fall back upon my disclaimer. There is not a solution I can recommend in Capt Kalia’s case, but unfortunately neither can the Court. It is the Government’s bounden duty to protect the interests of those who protect our borders. It is the system’s responsibility to find a way out of the logjam and to iron out the creases. As citizens, we expect the Government not only to raise the issue internationally and robustly with Pakistan, but also the highest of the political executive to personally reach out to Capt Kalia’s family and others affected by such horrors and to alleviate their hurt.

Per Thomas Carlyle, “endurance is patience concentrated”, but then, let us not stretch it to the extent of causing a rupture in our national pride we so very cherish.

----


Major Navdeep Singh is a practicing Advocate in the Punjab & Haryana High Court and the Armed Forces Tribunal. He is a Member of the International Society for Military Law and the Law of War at Brussels.


He is also the author of “Maimed by the System”, a collection of real life accounts of military veterans and their families who fought to claim their rights.

Thursday, June 4, 2015

My op-ed @ Rediff: Soldiers’ Welfare- Prime Minister proposes, bureaucratic machination disposes

The following op-ed was published @ Rediff on OROP and also the need to look beyond the same:


Soldiers’ Welfare: Prime Minister proposes, bureaucratic machination disposes


Navdeep Singh


The bogey of the “paramilitary” perceivably demanding the applicability of “One Rank One Pension” (OROP) at par with the military is yet another case of throwing an additional spanner in the works by the lower bureaucracy of our great nation, thereby totally confusing the political executive.

As most even slightly connected with the subject would be aware, though concept of OROP seems ideal for all government employees, it is the defence services which deserve it the most and the foremost because of their early retirement with no guarantee of post-release employment.

What should put the otiose comparison to rest is the fact that while personnel of the defence services start retiring at the age of 34 onwards, members of Central Armed Police Forces (CAPFs) are released in their late 50s. So at certain ranks, the latter serve even two decades more than the former thereby not only garnering higher lifetime earnings and financial protection but also multiple pay and emolument revisions due to the fact that they get the benefit of serving during the currency of subsequent pay commissions by which time their comrades in the military may have long retired, and some, faded away.

It is an open secret that accountants and lower bureaucracy in the Ministry of Defence have always misguided the higher bureaucracy and military brass and also the political executive of the reality concerning the defence services. File notings are prepared in a mischievous manner so as to elicit negative replies. Not only their own bosses, but an attempt is made to fool even the Courts and Parliamentary committees, or else how could one justify the straight lie peddled by the Ministry of Defence before the Koshiyari Committee of 2011 that OROP would be difficult to implement since documents of defence personnel are destroyed after 25 years? Hogwash it was since it is the documents of non-pensioners which are destroyed after 25 years while the documents of pensioners (to whom OROP applies) are retained till perpetuity.

While I have full faith in the Prime Minister’s commitment towards OROP, and also of Mr Manohar Parrikar, who is as well-intentioned as one can get, I would just want to warn them not to take at face-value what is presented to them by the bottom of the hierarchy. It is the political executive through the higher bureaucracy from the top that has to impose the policy decisions on to the lower layers and not the other way round. The Government has to be run by the top echelons and not by the army of Section Officers and Under Secretaries. Policy has to be determined by the Government under the Rules of Business and not by Accountants of the Defence Accounts Department. Decisions must be taken by due discussion and inputs from experts and insulation from reality by a coterie ensconced in a web of negativity should be avoided. The attempt to water down the definition of OROP must also be fervently resisted. There is only one definition of OROP, and that stands solidified by the Government itself- similar amount of pension for each rank with similar length of total service, with the benefit of future enhancements passed on to past retirees. 

Which also brings me to the role of military veteran organisations. Veterans should not jump the gun with every move or indication that they perceive to be against them. Instead they should be united, not bicker amongst themselves, shun their differences, present a cohesive front and then fight for their rights in a dignified manner. Statements of no less than the Prime Minister assuring veterans of his concern should not be brushed aside lightly and the tendency of hyper-technical hairsplitting of every public announcement with a negative connotation is best avoided, more so when we are so close to the goal. Due regard should definitely be rendered to what the Prime Minister has stated, but that is again not to say that in a free democracy we are entitled to advise others to muzzle their voices but one can definitely counsel to dignify the tone.   

One can hope that now that the issue is in national consciousness it is implemented swiftly. It is also hoped that all stakeholders, including military veteran bodies, would not lose sight of other insidious, and in fact, even more important issues that are staring them straight and which may not be glamorous enough or monetary in nature but still are a cause of major concern. Pertinent amongst these being the way disabled soldiers are treated by the system with the official establishment filing appeals till the Supreme Court in cases of disability pension awarded to disabled soldiers by Courts and Tribunals, the constant decline of the status and the sheen of the military rank in the official pecking order and also the society at large, guaranteed post-retirement employment with protection of military status and dignity, and most importantly the recent Supreme Court decision rendered on a plea of the Ministry of Defence and the Army wherein it was held that soldiers, veterans and military widows aggrieved by decisions of the Armed Forces Tribunal would not be able to approach the High Courts for relief- a disaster since it has snatched a fundamental right that is otherwise available to every  citizen and also to similarly placed civil government employees of approaching the High Court under the writ jurisdiction and thereby leaving the military community remediless thus making the Armed Forces Tribunal the first and the last court for them with no tiers or layers of judicial hierarchy at their disposal which is guaranteed to all citizens in all democracies. An unaffordable and inaccessible direct appeal to the Supreme Court under the Armed Forces Tribunal Act is also only permissible if the matter involves a “point of law of general public importance”, which is not the case with 99.99% of litigation before the Tribunal. This has come as the biggest blow since independence, but veterans, totally engrossed in OROP, do not seem to have realized the gravity of the situation.

While OROP remains an important emotive issue for veterans, the focus hence should not just remain limited to it but also on subjects which on the surface do not seem attractive enough since these have no nexus with finances, but affect the very basic existential rights of the military community which stand obliterated for them but remain available to all other citizens. 

While summing up, we, as citizens, should hope and pray that the Prime Minister’s sentiment is not held ransom by machinations and craftiness of a few junior babus who throw in an imaginary impediment at every welfare measure and resultantly snigger and giggle at the sidelines every time a soldier is ill at ease, and also trust that the veteran community continues to pay attention to persistent issues that will haunt their survival in life that shall be beyond their current aim- OROP.

-----

Major Navdeep Singh is a practicing Advocate in the Punjab & Haryana High Court and the Armed Forces Tribunal. He was the founding President of the Armed Forces Tribunal Bar Association. He is a Member of the International Society for Military Law and the Law of War at Brussels. He is also the author of “Maimed by the System”, a collection of real life accounts of military veterans and their families who had to fight to claim their rights. 

Tuesday, June 2, 2015

NDTV’s “The Buck Stops Here”, on OROP and related military issues

NDTV conducted a debate on “The Buck Stops Here” related to OROP and ancillary issues concerning the military community in which I was also on the panel.



It is a recommended watch for those following the subject. 

Thank You. 


Wednesday, May 27, 2015

News you can use

Implementation of Orders of the Armed Forces Tribunal
There is some movement on the implementation of orders of the Armed Forces Tribunal (AFT). The Ministry of Defence has recently issued implementation instructions for about 249 cases related to disabled and war disabled soldiers. More on the subject can be read through this news-report. Another report can be accessed here.

Appeals filed by the Ministry of Defence against pensions of Honorary Naib Subedars and Honorary Commissioned Officers
Regular readers would be aware of the sordid saga concerning the pensions of Honorary Naib Subedars earlier written about on this blog in June 2013. The Supreme Court has apparently rejected the second round of appeals filed by the Ministry of Defence against such pensioners on 20 May 2015. More information would be provided when the order is made available. The en masse appeals filed against Honorary Captains and Honorary Lieutenants also reportedly met the same fate on 06 May 2015.

Landmark judgement by the Patna High Court on pensions
Just as is the case of pay of serving employees, the Patna High Court in a landmark decision has held that pensions of government employees retiring from senior grades cannot be lower than those retiring from junior grades, irrespective of the date of retirement. In a lucid, sharp and crisp judgement, the Division Bench of the High Court has set aside the decision of the Central Administrative Tribunal which had denied relief to pensioners. The decision can be accessed and downloaded by clicking here.

Letter issued ostensibly for simplification of procedure for permanently disabled children/siblings and dependant parents of service personnel and pensioners
A letter on the above mentioned subject has been issued by the Department of Ex-Servicemen Welfare as a part of simplification process. I would not say more and readers can peruse the said letter in order to fathom how much the process stands simplified. 

Sunday, May 17, 2015

More Chapters of wisdom read out to the system by the Supreme Court for disabled soldiers. But then, who cares!!!


At times we redundantly expect the officialdom to stand behind our uniformed men and women or to move heaven and earth to ensure the grant of benefits to veterans in order to guarantee a life of minimum dignity. But then this shall remain a dream it seems, forever.

Again, the Supreme Court has ruled on an issue which the officialdom itself should have addressed. While adjudicating an appeal filed by the Army and the Ministry of Defence against a poor disabled soldier boarded out of the Jammu & Kashmir Rifles after branding his disability 'neither attributable to, nor aggravated by military service' and who was finally granted his disability pension by the J&K High Court, the Supreme Court has reminded the system that approach towards disabilities arising in military service cannot be unpragmatic or insensitive and that even constitutional or genetic disabilities can very much get aggravated by rigours of military life. Dismissing the appeal, the Supreme Court has held the soldier entitled to disability pension even though he was boarded out soon after his training.

As discussed earlier, I fail to understand as to why are we becoming the masters of our own defeat. The whole approach towards litigation is misdirected. Litigation in the defence services is not based on legal principles but on ego trips. There is unethical pressure on officers handling litigation to ‘win cases’. Of course, every party to a litigation has the right to prosecute and defend its case, as the case may be, but then the first and foremost duty should be to assist Courts in arriving at justice and not to apply a hook or crook approach by misleading judicial fora or hiding facts or not even conceding cases which are squarely covered by existing policies or judicial pronouncements. Let me give another recent example. The Punjab & Haryana High Court had last year rendered a landmark decision on disability benefits to personnel disabled while on authorized leave. The decision was hailed in military circles and also appreciated by the official establishment. It was also communicated to the Raksha Mantri who is personally looking into the matter. The issue was also progressively raised before the Seventh Central Pay Commission. However shockingly, without any intimation to the Ministry of Defence or the Raksha Mantri, elements of the Army filed a review in the said case before the High Court citing that one of the notifications quoted by the High Court in the judgement had been superseded and that the Counsel for the Ministry/Army did not know about the supersession of the notification at the time of arguments. The reality however was that firstly, the said notification made no material difference to the outcome of the case since the judgement had been rendered by the High Court on multiple reasons and logic and this was only one of the ancillary points discussed. Secondly, the same point of review on the pretext of the supersession of the notification had been raised by the Ministry and the Army before the Supreme Court in a review petition in another case which was dismissed by the Apex Court in January 2014. Hence now a false affidavit had been filed before the High Court that the Army came to know about the supersession of the notification in 2015 whereas the same point had been already raised before the Supreme Court way back in 2014 and rejected too!

This raises various questions about our functioning- Whether some elements of the uniformed community can show undue exuberance in filing such reviews and appeals without due information to the Ministry or at least the Chief and the AG, fully knowing that the issue had been projected for resolution by the Services themselves to the Pay Commission? Whether a false affidavit on behalf of the Ministry/Chief can be filed locally without information to the concerned authorities more so since it is in direct contradiction of an issue taken up for resolution at the highest level? If on one hand the Pay Commission Cells are tirelessly working for getting soldiers and veterans their due benefits, can another branch on the other hand present diametrically opposite damaging and self-defeating views before Courts stating that benefits should not be granted to disabled soldiers? Whether false affidavits regarding lack of knowledge be submitted in a High Court knowing fully well that the same Review Petition on exactly the same point was dismissed by the Supreme Court way back in January 2014? Whether a hyper-technical approach to litigation is desirable in such cases wherein it is much known that the issue being canvassed before a Court has no relevance and makes no material difference to the final judgment rendered by the Court which was rendered on a variety of points? Whether the responsibility of a legal branch of an organisation is to kill the benefits of its own personnel and oppose all that is raised in Courts or uphold the principles of law in an ethical and humane manner? Whether undue pressure by higher-ups to ‘win cases’ is leading to unethical practices?

These are questions which were not asked in the times of yore but the times are changing and we must make the system answerable for the actions it takes against the interests of the veteran community and also of those who require our utmost care- our disabled soldiers and widows.

We refuse to stand up before notings prepared by Section Officer level officials in the offices of Financial Advisors but willingly file cases against our own disabled soldiers without taking a stand! I would like to remind readers again that General VK Singh had refused to file an appeal against Lt Gen Vijay Oberoi’s war injury pension case and ultimately it was the Ministry of Defence which had to initiate the process all alone. Today the MoD is on record saying that it is the Army HQ, after consultation with JAG and Legal Advisor (Defence), which files appeals, but the Army HQ states that it does so on the instructions of the MoD. Whatever may be the truth, the ultimate sufferers are our own people, especially those of the lower ranks, and their families. It was painful for me once to hear a Bench questioning the capability of the establishment to look after the morale of troops in operations when en masse appeals were being filed against their sundry benefits, sometimes amounting to a few hundred rupees per month. 

What I have written above is not to pinprick but just to show a mirror to all of us and should hence be taken in the right spirit. This once again reminds me of some lines that I wrote not many months ago, which resonate in my mind every time I am made to undergo the agony of dealing with such cases:

“...It is not that I do not empathize with the subject, but the last few years have resulted in an extreme form of dissatisfaction when I have discovered that while we keep fighting for the rights of our service-members and veterans, many of those in uniform tasked with protecting those very rights, incorrigibly stand in opposition of these causes. Believe me, it is a sad sight to see officers in uniform taking stands opposite of what we all stand for- justice and welfare for the military community, restoration of status, rights and privileges of our serving personnel. Yes, it is distressing and disheartening to see uniformed officers take hyper-technical objections and laugh and chuckle and rejoice on dismissal of rightful and genuine claims of soldiers, disabled veterans and widows in Courts forgetting that their prime duty is to assist the Courts or the system at arriving at justice and not to bludgeon the prayers of such people by hook or crook.
If some serving personnel of today are not wanting to reclaim their rights or to live a life of dignity with their equitable benefits guaranteed by law after retirement, if they want to only file appeals against decisions of Courts rendered in their favour rather than sounding the clarion call for change of anomalous and unjust policies, if they want to celebrate their own defeat, so be it.
It is tiresome to bang one’s head against a barricade that divides the just from the unjust...”

Déjà vu.


Thursday, May 7, 2015

Op-ed: Excessive Tribunalisation- the pitfalls of parallel extra-judicial super-courts!


My opinion piece on Excessive Tribunalisation in India, published today in Moneylife, is reproduced below:

EXCESSIVE TRIBUNALISATION: THE PITFALLS OF PARALLEL EXTRA-JUDICIAL SUPER-COURTS

Navdeep Singh

Emergency it was when the concept of Tribunalisation was pushed into the national consciousness through the 42nd Amendment. The idea was clear for the rulers of that day- tacit executive control over judicial functioning through quasi-judicial bodies piggybacking on the bogey that these shall relieve regular Courts of their burden.

Notwithstanding the repeated red-flagging by the SC, excessive Tribunalisation, with the eagerness of the executive to give it impetus, slowly and surely threatens the judicial fabric of our democracy with the creation of parallel extra-judicial Super-Courts which are now dangerously hovering over the citizenry with a life of their own without being effectively amenable to the regular judicial set-up of the Westminster model, a fright we must no longer ignore.  

The recent statement of the PM over functioning of Tribunals vis-a-vis regular Courts rightly created a lot of buzz and was reflective of the concerns of jurists, lawyers, litigants and bar associations over the functioning of Tribunals, which, in their present form, do not inspire confidence of stakeholders and end up as post-retirement sinecures or a case of ‘dangling carrots’ rather than the noble aim of rendering justice in the form of public service to the community.

To take a few examples, many Tribunals function under those very ministries against whom they have to pass orders. The Debt Recovery Tribunal and the Debt Recovery Appellate Tribunal function under the Ministry of Finance, the Armed Forces Tribunal functions under the Ministry of Defence while the Telecom Disputes Settlement and Appellate Tribunal functions under the Ministry of Communications & IT. These Ministries not only control Tribunals with invisible strings but also with tangibles such as infrastructure, finance, salaries and staff along with the rule-making power. Secretaries of the same Ministries (the opposite parties in litigation) sit in the selection, reappointment and inquiry panels of Adjudicating Members of the Tribunals. Continual directions by even Constitution Benches of the SC to place the control of Tribunals under the Ministry of Law & Justice have not yielded any positive change. Ministries refuse to part with their fiefdoms, a situation diametrically opposite not only to our Constitutional norm of separation of power but also against the concept of judicial independence recorded in Article 14 of the International Covenant on Civil and Political Rights. It therefore comes as no surprise that Courts in many nations have resisted the encroachment of judicial functions by executive-controlled bodies- in the US (Northern Pipleline case, 1982), Canada (Residential Tenancies Act case, 1981), Australia (Harry Brandy case, 1995) and even in Pakistan (Riaz-ul-Haq case, 2012).

It should concern all of us that while our fiercely independent Constitutional High Courts have steadfastly protected the rights of citizens from official tyranny, the shape of Tribunalisation is stealthily being moulded in a manner to blunt out the power of our HCs conferred by Articles 226 and 227 of the Constitution. For many Tribunals, illusory and non-vested appeals are being provided directly to the SC by circumventing HCs to ensure that the latter do not maintain a check on the functioning of such Tribunals by keeping them within the confines of law. Even provisions of direct appeals to the SC are designed in such a fashion that they are not maintainable in most cases. Some Tribunals such as the Armed Forces Tribunal have become the first and the last court for litigants and all-pervasive bodies neither amenable to HCs nor to the SC and without a vested right of judicial review since a direct appeal has been provided to the SC only in limited cases where there is the exceptional involvement of a “point of law of general public importance”. Hence contrary to what is projected, some Tribunals have left litigants remediless and justice made so inaccessible and unaffordable that affected parties are expected to rush to the highest Court of the land in Delhi even for petty and routine matters. Both law-makers and law-interpreters need to ponder over such deleterious consequences.

The PM’s cue should have ideally generated a call for strengthening of our real Courts and reducing the length and breadth of Tribunalisation except in highly technical matters involving precise expertise. Reduction of burden on Courts cannot be at the cost of independence of judicial functioning by creating an analogous quasi-judicial hierarchy functioning under the executive.

So what can be the way out? In order to restore public faith, the following steps appear worthy:

Though best avoided, if a pressing need is felt then Tribunals may only be retained as replacement of the jurisdiction of Courts of first instance in specialised subjects and fully amenable to the writ jurisdiction of High Courts on lines of the Central Administrative Tribunal.

The correct function of Tribunals should remain to supplement and filter out cases for the superior judiciary and not to replace it. Other than highly technical matters, Tribunals can at best function as fact-returning bodies of experts leaving adjudication of disputes to regular Courts.

Tribunals may not be allowed to be seen as post-retirement sinecures. An orientation capsule be introduced for non-Judicial members.

Tribunals should be placed under an independent body or commission, and till that ideal objective is achieved, under the Ministry of Law & Justice as an interim measure, on the lines of the Income Tax Appellate Tribunal, and may not be allowed to function under parent Ministries. Bureaucrats of the said Ministries should never be made a part of selection process for Members of Tribunals.

Members of Tribunals should be provided the best possible facilities but not from the Ministries against which they have to pass orders. Members should be given the security of tenure but without the system of reappointment.

Since “reduction of burden” on Courts and “quicker dispensation of justice” was ostensibly the aim of Tribunalisation, a stringent provision for time-bound redressal must be incorporated in all statutes dealing with Tribunals.

The striking down of the National Tax Tribunal last year has raised hopes that any attempt to undermine the independence of judicial functioning would not be allowed to prevail in our democracy. While stakeholders hope that the PM’s sentiments get translated into actual action, the system needs to wake up to the reality that a litigant has more faith in independent adjudicating Courts with an expedient cost-effective mechanism of judicial review with Constitutional Courts rather than being stuck in a chaotic labyrinth functioning under the thumb of the opposite party reflecting the worst kind of conflict of interest, a peril we must fervidly resist.




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Monday, April 27, 2015

Compilation of all reports and opinions on the decision of the Supreme Court related to challenges to orders passed by the Armed Forces Tribunal

Since it is one of the biggest jolts to the basic fundamental rights of defence personnel, veterans and their families, I am compiling all major reports and opinions on the subject of the recent Supreme Court decision related to challenges to the orders of the Armed Forces Tribunal. Those who were laughingly thinking that the decision came as a ‘welfare measure’ for the military community, please do not forget that the decision has in fact come on a plea of the Ministry of Defence against judgements of High Courts which had ruled in favour of defence personnel and veterans.

There is still time, go through the databank below and Wake up!








My post on the fallouts of the decision