Gauhati High Court endorses Limited Competitive Examination for the IPS, sets aside the order of the Central Administrative Tribunal

The Limited Competitive Examination (LCE) for induction into the Indian Police Service (IPS) was stayed by the Central Administrative Tribunal last year in a Petition essentially filed by officers of the State Police Services.

The CAT had later allowed the petition and quashed the notification of the examination as well as the amendment of the Rules incorporating LCE as one of the entries into the IPS.

The verdict of the CAT was then challenged before the Hon’ble Gauhati High Court by the Central Govt and also by some officers who had applied for the LCE.

The High Court has now set aside the decision of the CAT and has upheld the validity of amendment of the rules through which LCE has been introduced.

The entire judgement of the High Court (10 MB) can be downloaded by clicking here. 

HOW “ROBUST” IS APPELLATE REVIEW OF COURTS-MARTIAL? : Eugene R Fidell

Regular readers of the blog would be aware of Mr Eugene R Fidell whose guest post was published on the blog earlier on 16 March 2013. Besides being the President Emeritus of the US National Institute of Military Justice, Mr Fidell was magnanimous in his support towards my idea of the Forces Law Gazette. 

Here is another topical write-up by him originally published earlier this month on ‘Balkinization’ which again is a sounding-board not just for American military law, but other nations as well.

HOW “ROBUST” IS APPELLATE REVIEW OF COURTS-MARTIAL?

   Secretary of Defense Hagel’s March 7, 2013 letter to Senator Boxer advised that he had ordered a review to determine whether the requirements of the Uniform Code of Military Justice were followed in connection with the widely-noted Convening Authority (CA) action under Article 60 in United States v. Wilkerson and whether that case suggests a need for changes in either the UCMJ or the services’ implementation of it. He noted that “this case does raise a significant question whether it is necessary or appropriate to place the convening authority in the position of having the responsibility to review the findings and sentence of a court-martial, particularly prior to the robust appellate process made available by the UCMJ” (emphasis added). On April 8, 2013 he recommended that Congress modify Article 60.

Congress will decide whether the CA’s powers should be reduced or reallocated, but it should do so only with a correct understanding of the appellate process, since changes are needed there as well. The critical point is that the current process is not “robust.”

First, for a court-martial to qualify for review by a service Court of Criminal Appeals (CCA) under Article 66, the sentence as approved by the CA must include the death penalty, confinement for a year or more, or a punitive discharge (i.e., dismissal for officers and service academy cadets and midshipmen, bad-conduct or dishonorable discharge for enlisted personnel). Because of the jurisdictional threshold, many special and general courts-martial are not subject to review by the military appellate courts. Instead, the only available direct review is within the office of the Judge Advocate General under Article 69. That review is conducted without judges, appellate counsel, full briefing or oral argument.

A few numbers demonstrate the limits. In Fiscal Year 2012, 368 (21.3%) of the 1727 special and general courts-martial received by the TJAGs were eligible only for the internal administrative review. A handful of these Article 69 cases may have been referred to the CCAs as a matter of JAG discretion but, once there, they are subject to narrower review than Article 66 cases. CompareArticle 66(c) (power to weigh evidence, judge credibility of witnesses, and determine controverted questions of fact) with Article 69(e) (CCA may take action “only with respect to matters of law”).

Do not suppose that courts-martial that don’t meet the jurisdictional threshold for CCA review are unimportant. Many can have significant effects on the accused, including lifelong stigmatization as a federal offender and, in some cases, sex offender registration, loss of the right to possess firearms, deportation, and other collateral consequences.

Second, neither the Constitution nor the UCMJ affords CCA judges the protection of fixed terms of office (much less the life tenure enjoyed by Article III judges). See Weiss v. United States, 510 U.S. 163 (1994). By regulation, Army and Coast Guard CCA judges have three-year terms; those on the Navy-Marine Corps and Air Force CCAs remain without fixed terms of any duration. At-will appellate judges such as these are unheard of in any other part of the American legal system.

Third, cases that come within CCA jurisdiction often meet with significant, and in some instances, extreme delays. A recent case took the Air Force CCA 1024 days from docketing to decision.

Fourth, CCA decisions are in turn reviewable by the United States Court of Appeals for the Armed Forces (CAAF). Under Article 67(c), CAAF may “take action only with respect to matters of law” and does not review sentences for reasonableness. It automatically reviews the few military capital cases, and in noncapital cases grants discretionary review “on good cause shown.” The JAGs, however, need not show good cause to obtain CAAF review: Article 67(a)(2) gives them the power simply to refer (or certify) a case to CAAF. In Fiscal Year 2012 eight cases were certified. Since the JAGs rarely certify cases for the benefit of the accused, this aspect of the UCMJ appellate process is asymmetric.

Fifth, only a limited subset of the cases that reach CAAF ever become eligible for review by the Supreme Court of the United States. Under 28 U.S.C. § 1259, certiorari is available to review CAAF’s capital cases, those certified by a JAG, those in which CAAF grants discretionary review, and others – brought by extraordinary writ -- in which it grants relief. Article 67a(a) adds that the Supreme Court “may not review by writ of certiorari under this section any action of [CAAF] in refusing to grant a petition for review.” Thus, except for the rare capital cases and the handful certified by the TJAGs, a party can petition for certiorari only if CAAF has in its discretion granted review or an extraordinary writ. In Fiscal Year 2012, CAAF granted 202 petitions for review and two petitions for extraordinary writ or writ-appeal petitions and denied 616 petitions and 27 writs, rendering 76% of the total statutorily ineligible for Supreme Court review.

Sixth, the cumulative result of the jurisdictional threshold for CCA review and CAAF’s ability to bar the door to Supreme Court review is that roughly 90% of special and general courts-martial never become eligible for Supreme Court review. In contrast, all federal and state defendants and even persons convicted by military commission have a right to petition the Supreme Court for review of their cases.

Seventh, in the minority of CAAF cases that are eligible for Supreme Court review, the Solicitor General takes the position (despite contrary legislative history) that the Supreme Court may only decide “issues” as to which CAAF has granted review. On this view, an ungranted issue in a granted case remains outside the Supreme Court’s jurisdiction. The Supreme Court has repeatedly declined to address this question, having never granted certiorari on an ungranted issue.

Finally, the military judicial process does not include a statutory post-conviction fact-finding mechanism like that provided for civilian federal criminal cases in 28 U.S.C. § 2255. Instead, it relies on the so-called DuBay hearing, a judicially-manufactured substitute that seeks to compensate for process failures in the existing system, which lacks a standing trial court. These limited evidentiary hearings are ordered when, for example, a claim of ineffective assistance of counsel arises. Although they avoid “the unsatisfactory alternative of settling [an] issue on the basis of ex parte affidavits, amidst a barrage of claims and counterclaims,” United States v. DuBay, 37 C.M.R. 411, 413 (1967), they remain a makeshift appendage to the military appellate process.

Appellate review under the UCMJ is not “robust.”

Progressive guidelines on suo moto disclosure under the RTI Act

One of the most progressive sections of the RTI Act is Section 4(2), which provides that public authorities should endeavour to provide as much information as possible suo moto including through internet so that there is minimum resort to the Act for seeking information.

As experience had shown, the above provision was not properly executed by most public authorities as a result of which the public was forced to approach Public Information Officers even for sundry information which could easily be placed on a public platform by various public agencies.

To rationalize this problem, the govt had constituted a task-force and now has issued guidelines for implementation of the recommendations of the said task-force.

The following aspects shall now be placed in public domain, including on websites, by public authorities:-

A. Information related to procurement

B.  Public Private Partnerships

C. Transfer policies and transfer orders

D. RTI Applications received, their responses and Appeals thereon alongwith a proper search facility

E.  Information regarding CAG and PAC

F. Citizens Charter

G. Discretionary and non-discretionary grants

H. Foreign tours of PM and other Ministers

The complete Office Memorandum issued on the subject by the DoPT can be accessed by clicking here. 

Two developments for urgent action of affected serving personnel and retirees

Fresh exercise of 6^th Central Pay Commission Option: Immediate action required by all Units, Record Offices, Services HQ and also pensioners, if affected.

As had been the case in the past, when the recommendations of the 6^th CPC were implemented for central govt employees, they were given an option for either transferring to the fresh pay-bands with effect from 01 Jan 2006 or any other later date such as the date of promotion or upgradation of scale or date of increment if the same happened to be more beneficial as per the fitment formula. For example, if an officer was promoted as Major on 15 Jan 2006, then the officer could have opted for the implementation of the 6^th CPC scale with effect from the date of his promotion rather than 01 Jan 2006 thereby providing him/her a much better fitment stage in the pay-band and of course the cumulative benefits. The option was provided for a limited period of 3 months from the publication of the Instructions promulgating the new pay-bands both for civilians as well as defence personnel. However, as expected, the option could not reach many such employees, especially defence personnel since neither was the option properly explained nor were record offices and PAOs sensitive towards this very important provision. Many civilians also suffered a similar fate. Later, instructions were issued for those affected personnel who were to get their annual increment between Feb 2006 and June 2006 and such affected employees were granted an increment on 01 Jan 2006 as a one-time measure. However, employees affected by the above one-time measure had then raised a demand for allowing them to re-exercise the 6^th CPC option which was then accepted and instructions were issued by the Ministry of Finance for exercising the option afresh. However these instructions were only made applicable to civilian employees. Now the Ministry of Defence has accepted the same principle for defence personnel also and the letter thus issued can be accessed and downloaded by clicking here. The option may be made known to all affected personnel since the last date for exercising the option is 31 May 2013.

Pensionary benefits as affected by implementation of the Rank Pay judgement.

The pensionary and family pensionary benefits of many pensioners and family pensioners are expected to be upwardly revised as a result of the implementation of the rank pay judgement. Such affected pensioners may send in the desired information as available in this notice here thorough email to the office of Principal Controller of Defence Accounts (Pensions) on rankpay [dot] cdapension [at] gmail [dot] com. The PCDA (P) plans to issue revised pensionary entitlements by the end of May 2013.

Please do not mail me individual queries and the same may simply be posted on the comments section of this blogpost. Individual mails on the subject would not be replied to. 

Oped in 'The Hindu' about the attitude of Ministry of Defence towards soldiers and veterans

A wonderfully articulated opinion authored by Ms Chander Suta Dogra, published in ‘The Hindu’ today :

THE HINDU

Opinion / Oped

April 23, 2013

OUT OF STEP ON SOLDIER WELFARE

Chander Suta Dogra

The Defence Ministry’s stubborn refusal to implement orders of the Armed Forces Tribunal is creating disaffection among serving and retired personnel

Navindra Devi’s husband, Nk Rajpal Singh, wandered off from his Army unit in Bikaner, Rajasthan, while being treated for a psychiatric illness. His body was later found in a well. The unit showed him retrospectively on annual leave.

The Armed Forces Tribunal (AFT) held the Army responsible for his death and awarded Navindra Devi special family pension with 10 per cent interest from the date of death and Rs10,00,000 as compensation. The order, passed on December 8, 2011, has still to be implemented.

Brig T.S. Sekhon had to undergo an emergency procedure on his heart while visiting Germany in 2008. He was refused reimbursement of medical bills by the Ministry of Defence (MoD) under the Ex-Servicemen Contributory Health Scheme (ECHS) on the grounds that there was no provision of reimbursement when a person undergoes treatment abroad. The AFT, based on a similar Supreme Court pronouncement, directed the ECHS to reimburse the amount at rates that the said procedure would have cost in India had the emergency happened here. The judgment, passed on February 28, 2011, remains unimplemented.

Almost four years after the AFT came into existence to provide an alternative judicial mechanism to serving and retired defence personnel of the Army, Navy and the Air Force for redressal of their grievances, it is becoming increasingly apparent that something is wrong with its functioning and administration. The AFT began functioning from August 2009.

That there is a conflict of interest in having the AFT under the administrative control of the MoD, against which most of the cases are directed, is only one of the problems. As reported in this newspaper on April 4, 2013, the MoD has treated AFT members, a mix of retired judges and senior retired army defence officers, to its largesse by ensuring them foreign trips and canteen cards, “with a view of influencing” them.

MINISTRY’S COUNTER-APPEALS

Presently, the MoD controls the funds and infrastructure of the AFT and also has a say in appointments, an increasingly questionable arrangement. The AFT is mandated to hear grievances relating to appointments and conditions of service, military commission and appeals against court martial.

At another level, the tendency of the MoD to appeal against most judgments of the AFT, even on issues settled by the Supreme Court and against the decisions taken by Army headquarters is leading to much disaffection. Many more are simply not implemented and appeals against them filed much after the mandated period. This is repeatedly being pointed out by ex-servicemen’s organisations and Army Headquarters, but with no let up.

One reason for this is that the AFT does not have power of civil contempt to enforce its judgments. Last month, the Parliamentary Standing Committee on Defence recommended granting civil contempt to the AFT, a move stoutly opposed by the Department of Ex-Servicemen Welfare (DESW) within the MoD, leading many to take that as yet another piece of evidence of the latter’s “anti-defence sentiments.”

Already there is much resentment over the absence of any serving or retired defence officer in DESW, a department meant to deal with problems of veteran soldiers.

But first, this is what DESW had to say in its defence before the parliamentary panel regarding non-implementation of the decisions of the AFT. “Generally, all orders passed by the AFTs are implemented unless they are against the settled policies of the government.”

COURT RULING

The Indian ex-servicemen movement reacted strongly to these pronouncements in a letter to the Defence Minister, saying that it appears the “DESW wants to make the AFT subservient to it and intends to treat it as another office of the MoD and not like a judicial body.” Court decisions are binding and have to be implemented unless there is a stay on their operation by a higher court.

A representative of the Ministry of Law lent weight to the allegation that relief granted by the AFT is almost always appealed against by the MoD. The representative told the parliamentary panel: “Against almost each and every matter the appeals are filed.” Not surprisingly, a commonly heard refrain within the defence fraternity is that “the DESW does everything except welfare of retired defence personnel particularly in respect of disabled soldiers and pensioners.”

Some recent actions of DESW in which it has reportedly ignored the instructions of the Defence Minister and protests by the Army substantiate these assertions. The most glaring example is that of Lt.Gen. Vijay Oberoi (retd.), a disabled soldier, on whose petition the Chandigarh bench of the AFT, in 2010 allowed broadbanding benefits to all disabled personnel irrespective of when they left service.

In March 2011, the Supreme Court in a similar case ruled that broadbanding benefits were to be provided to all disabled personnel and not just those who were invalided out, and dittoed it in another case in April 2011.

In August 2011, the Army headquarters and the Chief of Army Staff also directed that no further appeals were to be filed in such cases and that the judgments of the AFT and the Supreme Court implemented in favour of disabled personnel. However, in February 2012, DESW under the MoD appealed against the AFT’s judgment in Lt.Gen. Oberoi’s case.

In March 2012, the Defence Minister directed that no further appeals were to be filed in such cases till a final call is taken and that even the pending cases in the Supreme Court should not be argued by the government. However, in April and May 2012, the MoD/DESW filed more such appeals in similar matters.

AGAINST SHIFT

Notwithstanding the growing demand to shift administrative control of the AFT from the MoD, the latter has been consistently opposing it.

In November 2012, the Punjab and Haryana High Court also directed that its control be transferred to the Ministry of Law and Justice.

The judgment quoted from an earlier Supreme Court ruling that has suggested that all departmental tribunals like the AFT, should be brought under a wholly independent agency to ensure that the independence of the members of the tribunals is maintained. A proposal to set up a Central Tribunal Division under the Ministry of Law is in the pipeline.

Besides the principal bench in Delhi, there are eight regional benches in Jaipur, Chandigarh, Lucknow, Guwahati, Kolkata, Chennai, Kochi and Mumbai. Together, these nine benches have 15 courts, each with a judicial member (a retired high court judge) and an administrative member (a retired general officer).

Q & A (15)

Readers may send in their Questions through email for a Q & A session with ‘Q&A’ as the subject. For rules, please read this post. 

What are the rules for age relaxation for ex-servicemen for various levels of posts in the central government? (Ex-Sgt Murugan)

All rules regarding age relaxation are available on the DoPT website. These can be accessed by clicking here.

What is the rate of Constant Attendance Allowance (CAA) and is it applicable to paramilitary personnel? (Ashok Khanna)

The rate of CAA is Rs 3000/- and it is applicable to civilian pensioners who fulfill the prescribed conditions w.e.f 01-01-2006.

Is DA/DR admissible on CAA? (Ex-Hav Avtar Singh)

Dearness Relief is not admissible, but CAA is increased by 25% whenever the rate of DA/DR reaches 50%.

Our son died in Siachen Glacier due to exposure to extreme cold but has not been declared a battle casualty and liberlalised family pension has also not been paid to us. What is the actual position? (Mrs ABC)

You are entitled to liberalized family pension since the death of your son is an operational death under OP Meghdoot. In fact, your case is covered by the judgement of the Supreme Court in the case of Union of India Vs Harjinder Singh. You may contact the Records Office and they shall surely take up the case in the correct perspective. In case your son was an officer, you may contact the Man Power Directorate (MP Directorate) at RK Puram, New Delhi, they are extremely helpful. This issue can be resolved in-house by the Army HQ.

I am a Short Service Commissioned Officer released on completion of terms with an attributable disability but not being paid my service element. I am only receiving disability element of pension. Am I entitled to service element? (Capt SS Raghav)

Yes, you are fully entitled to it since w.e.f 30-08-2006, the Govt of India has issued instructions to release service element at par with regular officers to all non-regular officers released on completion of terms.

Is addition of 100% pension on attaining the age of 100 years admissible on disability pension also? (Ram Avtar)

Congratulations on your relative attaining 100 years of age. Yes, it is applicable to disability pension and also to family pension.  

I retired as a Time Scale Naik in 1993. A person who had joined service with me and was also discharged with me on the same date is getting more pension than me. How is this possible (Prem Nath)

Naiks who retired between 1986 and 1996 with 15+ years of service were made eligible for pension by treating their qualifying service as 17 years. Your batch-mate may have received the said benefit while you may not have. You may contact the concerned Records Office and they shall definitely resolve the issue and get a corrigendum PPO issued.  

Would a separate Pay Commission for the Armed Forces be beneficial, after all?

There are indications that the process for constitution of the 7^th Central Pay Commission may be initiated soon with the background idea that the recommendations are accepted well before 01-01-2016 so as to give effect to the same on the said date.

The PMO, after the 6^th CPC fiasco vis-à-vis the defence services, had opined that there would now be separate pay commission for the defence services. Many of us have already started professing for a separate pay commission and the voice is getting stronger by the day.

But in the ultimate analysis, we should first ponder over this concept threadbare and reach a considered conclusion whether a separate pay commission would be beneficial or not, and in what form.

The greatest fear with a separate panel is that it may result in detached recommendations wherein pay-scales and pension formulae totally different than other central govt employees may be recommended which may ultimately hamper our cause. Also, as pay commissions are only recommendatory in nature, any proactive or progressive recommendations may not ultimately be accepted by the govt. There could be an element of delay as well.

So what is the solution.

The first and the best solution would be that rather than having a separate pay commission, we insist on proper military representation on the regular pay commission with formal members representing the defence services and veterans. This way, while not being totally disconnected from the civil services, the defence services would be able to have a say as far as uniqueness of military service is concerned.

The second solution would be to have a separate pay commission for the defence services which may be constituted only after the main pay commission has submitted its recommendations but with a time bound mandate to offset any kind of delay of release of benefits to defence personnel. It, for example, could be notified that the separate pay commission would submit recommendations within 3 months of the central pay commission and acceptance could be mandated within total of 6 months from the recommendations of the central pay commission, loosely on the lines of pay panels constituted for academicians with support of the UGC. Of course this would not be possible without proper appreciation and notification by the govt.

I’m not presenting any solutions but in my humble opinion, veteran organisations should hence hold their horses till the time a considered call is taken on the issue by all stake-holders, which must include veteran bodies, the Services HQ through the COSC and the Govt, by properly weighing the pros and cons. It would also be much appreciated if adequately sensitised (and sensitive) officers having expertise in the area are posted on key appointments dealing with the subject rather than based on service profile, ACRs, courses attended or posting profile.

I’m sure the current apex establishment understands the importance of expertise and internals rather than ceremonials or externals as far as posting of officers is concerned, and since the hopes this time are very high, attempts must be made to deliver in a deliberated and considered manner.

Appalling statements by the Department of Ex-Servicemen Welfare before the Parliamentary Committee on Defence which lower the dignity of judicial institutions

Last time I checked, you were sleeping - Prince (Dreamer, 2009)

The depositions made before the Parliamentary Committee on Defence, which, besides other issues, was deliberating upon providing the powers of civil contempt to the Armed Forces Tribunal (AFT) to ensure compliance of its orders, have brought to fore and on record what really the Department of Ex-Servicemen Welfare (DESW) thinks about the majesty of judicial institutions in this country, and how even the Defence Services themselves do not realize what is and what is not in their long term benefit. The deliberations have also brought again to light as to how the DESW projects itself as the greatest saviour of former defence personnel when the reality is just the opposite and is known to every single veteran in this nation.

The statements of the Secretary of the Department of Ex-Servicemen Welfare (DESW) before the Parliamentary committee have not only been crude but downright condemnable, in a complaining tone and bordering on being contemptuous. An attempt has been made to kill judicial initiative. The saving grace was that the Defence Secretary himself opposed the thought process of the DESW and so did the MoD as a whole. Even the Secretary, Ministry of Law and Justice has fully supported the viewpoint of the Defence Secretary, veterans and ex-servicemen organizations.

The report of the Parliamentary Committee was submitted this month and can be downloaded by clicking here.

My observations on the points raised by the DESW and other issues are in the following paragraphs.

Unethical and contemptuous statements by the DESW.

Paragraphs 3.7 and 3.8:

Statement of Secretary DESW: Here, the Secretary DESW makes the absurd statement that Contempt Powers are not required by the AFT since both the AFT and the DESW work for the betterment of ex-servicemen and such powers are only required when there is a dispute between private parties. The Secretary also states that there is harmony between the DESW and the AFT.

Reality: It is common knowledge that all cases before the AFT are between serving and retired personnel VERSUS the Union of India represented by the respective Secretaries. Proceedings before the AFT are judicial proceedings instituted by affected individuals against the Govt, and the AFT also is supposed to pass orders against the Govt, then how is that the DESW and the AFT are working in harmony? By this logic, no Court or Tribunal in India should have powers of contempt when it comes to passing orders against the govt! the biggest joke also is about the DESW working towards the betterment of ex-servicemen, if that be so, then why at all is there massive litigation pending against the DESW in Courts all over the nation? The Secretary DESW also seems to give an impression as if the AFT is an arm of the govt such as some public grievance office in an organization.

Paragraphs 3.9 and 3.10:

Statement of Secretary DESW: Here Secretary DESW states that by and large decisions are implemented unless the decisions are against govt policy and that either party is free to implement or if possible to go in for appeal. The Secretary further states that there is a conflict of interest related to Administrative Members sitting on Tribunals since they may also be affected by decisions in matters involving pension.

Reality: The Secretary hence genuinely believes that parties have the freedom or choice to implement decisions or otherwise. Mr Secretary, these are judicial verdicts and are to be implemented through your nose, you do not have the freedom to not implement. Either you implement or obtain a stay on appeal, there is no third way out, so forget about ‘freedom of implementation’. Secondly, all courts and Tribunals are supposed to examine reasonableness of Govt policy and no authority can state that it would not implement a decision if it is against govt policy. If govt policy is so sacred then why are Courts and Tribunals required? Only those individuals are supposed to approach Courts and tribunals who are dissatisfied with policy. Thirdly the statement of conflict of interest is crass to say the least. It is commonly known that Judges of Courts and Members of Tribunals recuse themselves if they are affected by an issue they are examining. And is the Secretary suggesting that AFT should not touch any pensionary matter since Administrative Members are all pensioners? Well if this is the logic to be followed then decisions on pensions being passed since 1985 by Central Administrative Tribunal or decisions regarding service conditions or pensions of the judiciary being rendered by HCs and the SC since times immemorial should be declared null and void? Totally absurd.

Paragraph 3.11:

Statement of Secretary DESW: The Secretary quotes some out of context judgement of the Chennai Bench of the AFT and states that Tribunals should avoid impinging upon policy matters.

Reality: A judgement of the Chennai Bench stating that it could not adjudicate on policy matters has not been accepted by the Madras High Court which had remanded back the matter to the AFT for adjudication. Even otherwise, facts of each case are unique. And it is totally unethical for the Secretary DESW to state before the Parliamentary Committee that Tribunals should not declare law on policy matters. The Secretary DESW is nobody to interfere in judicial functioning or to command or demand what a judicial body should or should not do. The Secretary DESW also seems to be unaware of the law of the land. In L Chandrakumar’s case, a Constitutional Bench of the Supreme Court has held that not just policy but Tribunals can also quash statutory rules. The power of the AFT to quash policies of the MoD also came into question in Union of India Vs AK Bhutani wherein the MoD raised the legal point whether AFT could quash its policy, the Supreme Court upheld the order of the AFT wherein the policy was quashed.

Paragraph 3.12:

Statement of Secretary DESW: Here the Secretary DESW comments on issue of broad banding of disability element of disabled soldiers where the SC and various benches of AFT have already ruled in favour of disabled soldiers. The Secretary brazenly and unethically discusses the merits of an issue which have been and are being adjudicated by judicial bodies. He also states contemptuously that disregard to govt policy is not a routine but limited to one or two benches only.

Reality: The Secretary DESW has no right to comment upon a judicial issue or judicial pronouncement. This is downright contemptuous. The Secretary has also shamelessly stated that one or two benches (most probably referring to the Principal and Chandigarh Benches) are disregarding policy. Mr Secretary, why are judicial bodies required if govt policy is to be always respected? And what right does this man have to comment on judicial functioning, this is total interference in judicial operation and amounts to criminal contempt and lowering the majesty of judiciary in this country. Also the decision on the issue of broad banding at the time remained pending with the Raksha Mantri who had sought the opinion of the Solicitor General, hence the statement of the Secretary clearly shows that the DESW has not only pre-judged the issue and jumped the gun but also managed to hoodwink the entire length and breadth of the officialdom on the subject.

Self-defeating stand of the three Services.

Also it can be seen from Paragraphs 3.13 to 3.19 that all three services have opposed conferring of powers of civil contempt to AFT on the pretext that this would cause operational disruptions in the sense that officers posted in operational areas would be frequently summoned by the AFT. It is also important to point out that all official and non-official deposers have supported the grant of powers of civil contempt, except the three services.

Unfortunately, the Defence Services have not realized that the senior officers who have made or prepared the statement or have been fed this incongruity have not fully understood the scope of civil contempt. They have also not fathomed that Members of the Bench who have also been former High Court judges or senior retired military officers are well aware of the four corners within which they have to function. Only those individuals should be wary of contempt who willfully disobey directions of the Court. Also, it is a known fact that contempt proceedings are never launched against officers posted in operational areas and in almost all cases are instituted against the Defence Secretary or in rare cases against the Service Chiefs or some appointments of the Services HQ. The Services are not holy cows who can stand distinguished from others as far as the applicability of law of the land is concerned. Senior officers who are convinced that AFT should not be granted contempt powers should understand that historically the High Courts were performing the same functions that the Benches of AFT are performing today, so what has changed? When HCs had powers of civil contempt while performing the same functions and it did not impinge upon the operational effectiveness, then how would the grant of same powers to AFT hamper the operational readiness now? If CAT has powers of civil contempt, how can AFT be treated differently? If a senior officer files a case for promotion or concerning his ACR or pension after retirement and a favourable decision is rendered, and it is not implemented by the MoD, would he or she then repeat the same statement that he may have rattled off before this committee? The answer would be in the negative. With all due respect, that is why I say that the services do not have the expertise to understand what is good and what is not good for them and the long term implications of such a bizarre stand. In other words, the Services themselves would be the greatest losers if their view is accepted.

The saving grace.

The Ministry of Defence (as a whole, separately from DESW) thankfully and gracefully projected to the committee the desirability of requirement of civil contempt powers. The MoD also emphasized that even the said statement had been made before the Supreme Court on the opinion of the Solicitor General. It was also brought out that even the Ministry of Law and Justice approved the same. The same becomes clear from Paragraphs 3.28 to 3.33.

The stand of the Defence Secretary requires full appreciation in this regard, wherein totally opposed to the stand of the Secretary DESW, he stated that orders have to be implemented without fail or an appeal is to be filed. There was full appreciation of the situation, the majesty of law, separation of powers as enshrined in the Constitution and the Right to Constitutional remedies conferred by the Constitution, on part of the Defence Secretary.

The following statement of the Defence Secretary sums the very pertinent and admirable views of the Ministry:-

“…The AFT has a utility. Thirdly, challenging the authority of any authority is a fundamental right of every individual, whether he is in service or retired. We have to provide a reasonable opportunity to him and an institution where he can go and file his grievance. Coming to the compliance of the order, as I said, it is our earnest effort that we must respect the order of the AFT. As I said, it is equivalent, in terms of status, to the high courts. Therefore, we do that always. But there may be cases where we have difference of interpretation. The Government may not agree or we feel that there is a scope for appeal, in that case, we go to appeal in Supreme Court or file writ in High Court. It is an institution which has a utility and we support that and that is why we have come for this amendment."

Taking AFT out of the purview of MoD.

One of the additional points as brought out by almost all witnesses was that the control of the AFT should not remain with the MoD. This has been agreed upon by the Committee and is also in line with the decisions of the Supreme Court in L Chandrakumar and R Gandhi’s cases and of the Punjab & Haryana High Court in Navdeep Singh Vs Union of India.

On the same subject, the keenness of the MoD to hold on to the reins of the Tribunal also came to fore through this statement of the Law and Justice Ministry:-

4.6  Another representative of the Ministry of Law and Justice apprised the Committee:

"I have seen the files that the Ministry of Defence is opposing the move to leave the control of AFT. They do not want to leave the control. So far as filling of appeal is concerned, I think against almost each and every matter the appeals are filed".

Net result.

The Committee however has taken the middle path and while recommending powers of civil contempt, has stated that serving military officers should not be made to appear before the AFT for civil contempt, and powers of civil contempt should be granted only qua officers of MoD, civil organizations and retired defence personnel.

In my opinion, this is not only discriminatory but also liable to be stuck down if challenged on being accepted as recommended by the Committee. In any case the half hearted recommendation is a good first step which should further stabilize with the march of law. In fact, the only three stake-holders in the issue were the Ministry of Defence, Ministry of Law and Justice and Ex-Servicemen organizations/private witnesses all of whom have displayed utmost maturity on the subject. Needless weightage has been granted to the views of the Secretary DESW who even ethically holds no brief to go against the MoD as a whole.  

Clarification on the issue of ‘Ex-Servicemen’ status to boarded out recruits

As mentioned on this blog on 20 September 2010, recruits who are boarded out with a disability pension are also to be treated as ‘Ex-Servicemen’ as per a clarification issued by the Ministry of Defence in the year 2006.

However since the definition of ‘Ex-Servicemen’ is basically promulgated and regulated by the Department of Personnel and Training (DoPT), many organisations, such as Rajya Sainik Boards, were not accepting the clarification issued by the Ministry of Defence and also not issuing them with Ex-Servicemen identity cards or allowing them to avail various facilities including age relaxation and reservation.

In the year 2012, the DoPT finally issued a fresh notification for the definition of ‘Ex-Servicemen’ and this time explicitly included boarded out recruits to tide over the initial ambiguity.

After the issuance of the DoPT notification which included within its ambit boarded out recruits also, most organisations started providing the said benefit to boarded out recruits but some were still reluctant to cover those who were released prior to the issuance of the DoPT notification dated 04 Oct 2012.

The MoD has now clarified the issue in conjunction with the DoPT vide its fresh letter issued on 18 March 2013 wherein it has been ordained that all recruits boarded out on or after the issuance of the earlier MoD letter dated 01 Feb 2006 would be covered under the said definition.

The fresh letter issued by the Ministry of Defence can be downloaded and accessed by clicking here.

Though the subject has been clarified in the above terms, in my opinion, boarded out recruits in receipt of disability pension would ipso facto be included in the pre-existing definitions in force prior to 01 Feb 2006 too since unlike officer trainees, recruits are entitled to pay and disability pensionary benefits as applicable to regular Sepoys and are also under the purview of the Army Act and hence cannot treated differently than others. Even otherwise, the MoD clarification issued on 01 Feb 2006 did not contain any cut-off date for the applicability of the clarification which has now been superimposed through back-door.

The Wilkerson case, and the controversy thereon….

In the very recent past, the case of US Air Force Lt Col James Wilkerson, a fighter pilot and Inspector General posted at Aviano Air Base at Italy, has caused much brain-storming on the subject of military commanders and convening authorities having been granted the powers to overturn verdicts of courts-martial. In the said case, while the General Court Martial had rendered a verdict of one year imprisonment and dismissal from service to the officer, the convening authority, a Lt Gen based in Germany, overturned the verdict resulting in calls for review of such authority provided to military commanders.

The controversy is not restricted to just the Armed Forces of the United States but has a sounding-board effect on militaries of all democracies.

Mr Eugene Fidell, the President Emeritus of US National Institute of Military Justice, in this original work published here (link), recounts the controversy. A must read for anyone even remotely connected with military law.

(After Mr Fidell’s write-up is a link to the call of the Senate Armed Forces Committee for deliberating this issue)

Aviano II

Eugene R Fidell

It's rare for two important things to happen in the same place. But so it is with Aviano Air Base, in Italy. Among military lawyers, Aviano was previously associated with a terrible accident in 1998 when a U.S. Marine Corps jet severed the cable of a ski gondola, sending 20 civilians to their deaths and leading to high-profile courts-martial. Aviano is now in the news because of another military justice case.

Last November, an Air Force general court-martial at Aviano convicted a fighter pilot (and acting inspector general) named James Wilkerson of sexually assaulting a civilian contractor and sentenced him to a year's confinement and to be dismissed from the service. By statute, the court-martial was subject to review by a three-star general stationed in Germany before the case would enter the military appellate court system. Under article 60 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 860, that officer -- known as the convening authority because he is also responsible for establishing (or convening) the court-martial and deciding that the case should be referred to it for trial -- has "sole discretion" "to dismiss any charge or specification by setting aside a finding of guilty." Authority to modify the findings and sentence "is a matter of command prerogative involving the sole discretion of the convening authority." Rule for Courts-Martial 1107, which is part of the Manual for Courts-Martial (an Executive Order) adds that, before taking post-trial action, the convening authority may consider not only the record of trial, the accused's service record, and any matters submitted by the accused, but also "[s]uch other matters as the convening authority deems appropriate." According to the official "Discussion" under R.C.M. 1107, the convening authority may "for any reason or no reason" disapprove a finding of guilty. The Manual does not require an explanation.

Late in February, Lt Gen Craig A. Franklin, the convening authority, exercised this power and disapproved the findings of guilt. Lt Col Wilkerson was released from confinement.

Given the current controversy over sexual assault in the military, it is not surprising that Lt Gen Franklin's action has sparked heated debate. This week the Senate Armed Services Committee will conduct a hearing on sexual assault in the military and it is likely the Wilkerson case will be Topic A.

Legislators from both sides of the aisle and across the political spectrum are expected to weigh in. It is important that they do so with a full understanding of the issue.

First, it would be wrong to harass or penalize Lt Gen Franklin. His action, whatever the reason(s) for it, was plainly authorized. Congress granted him sole discretion and he used it. To probe his reasons is to repudiate the statute. It is also a form of legislative "command influence" calculated to affect others' exercise of discretion, and as such no more appropriate than "unlawful command influence" exerted by senior officers.

But that is not to say Congress should do nothing. It may want to use this incident as an occasion for revisiting the statutory grant of unbridled post-trial review powers to commanders. Democratic countries are moving away from this role for commanders. Congress ought to fully inform itself of that trend and make an informed judgment as to whether the United States should abandon this command-centric aspect of the military justice system. Such a shift would rationalize our system, which includes not only a rough replica of the jury system, but also a military trial bench, two tiers of specialized appellate courts, and a clemency and parole system. The convening authority's post-trial power of review is a throwback to an earlier age and fundamentally discordant with other, more modern aspects of the military justice system. What are the members of courts-martial -- our uniformed jurors -- to think if they know that a commander can set aside the verdict they have painstakingly rendered after hearing the evidence, perhaps asking questions of their own (as military law permits), applying the military judge's binding legal instructions, and deliberating in secret?

If it conducts this examination of the back end of the military justice system, Congress should also look at the front end, where non-lawyer convening authorities enjoy equally broad discretion to decide which cases will be referred for trial by court-martial. To bring the one up to date and into sync with other aspects of the UCMJ while leaving its mate hard aground in the 18th century would make no sense. Congress could do as other democratic countries have done in the last several decades, and move the prosecution decision to a legal official such as a director of military or service prosecutions and away from commanders. Under a reformed system, commanders could of course express their views as to how any particular case should be handled, but they would have to do so in writing and the actual decision would lie with a trained, independent prosecutor.We can expect heat about the Wilkerson case in the coming weeks, but perhaps we can hope for some light as well.

Addendum as of 2:30 p.m., Mar. 11, 2013: see Secretary of Defense Hagel's letter dated Mar. 7, 2013 to Sens. Boxer and Shaheen.

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Readers may now like to peruse the House Armed Forces Committee of the United States website wherein a letter to Secretary Hagel has been addressed on the same subject.