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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:


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.


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

Tuesday, April 21, 2015

Disability and War Injury pension enhanced based on the fitment of minimum of pay within pay-band rather than minimum of pay-band itself

Five months after similar orders were issued for civilians, the Ministry of Defence has 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 rather than the minimum of pay-band itself.

The Ministry of Defence letter can be downloaded by clicking here.

The earlier post of November 2014 related to similar enhancement for civilians can be accessed by clicking here for a greater understanding of the subject.

Of course, this benefit has been granted only with effect from 24 September 2012 and not from 01 January 2006 despite the fact that the Supreme Court has upheld judicial decisions granting the benefit of such enhancement in pensions of civil and military pensioners from 01 January 2006.

Much credit goes to Disabled War Veterans India (DIWAVE) for thoroughly following this through. 

Monday, April 13, 2015

General, with all due respect, please stick to military matters.....

Lt Gen Harwant Singh (Retired), whom I hold in high esteem, has today published an article in the Hindustan Times (Page 5, Chandigarh Edition), waxing eloquent about the Armed Forces Tribunal (AFT) and that how appeals from it should lie to the Supreme Court, and in the bargain also making some uncharitable comments about our Courts and lawyers.

What bewilders me is the fact that retired officers who have no domain knowledge about law, litigation or the judicial system and also are not in touch with the pain and agony of the veteran or the military widow on the street, are writing opinions by spilling over to fields which they are not even familiar with.

Now, let me take up the main points raised by him, one by one:

Civil Courts’ practice of dragging on cases endlessly giving the example of Hashimpura killings

The General does not seem to understand the basic norm that the pendency of criminal cases or civil matters such as property disputes cannot be compared with service matters. While the former require collection and appreciation of evidence and multiple appellate jurisdiction, the latter emanate from Original jurisdiction of Courts and are not at par. Let us here, at the very outset, kill this myth about delay by Courts in a matter which equally affects civilians and military pensioners and which was taken up on both sides in an analogous manner- the recent removal of the pensionary anomalies of the 6th Central Pay Commission w.e.f 01 Jan 2006 rather than 24 Sept 2012. The same issue was taken up by both civilian and military pensioners. While the first decision in case of military pensioners was rendered by the Armed Forces Tribunal on 14-09-2010, the finality was attained by way of dismissal of the civil appeal by the Supreme Court on 17-03-2015. On the civil side, the Central Administrative Tribunal (CAT) had rendered the decision on 01-11-2011 and even after adjudication by the High Court, the SLP filed by the Govt was dismissed by the Supreme Court on 29-07-2013. Which process was quicker despite involvement of the High Court?

Date of Decision for civilian pensioners
Date of Decision for military pensioners
CAT: 01-11-2011
AFT: 14-09-2010
Decision by High Court: 2013

Decision by Supreme Court: 29-07-2013
Decision by Supreme Court: 17-03-2015
Status: Implemented for Petitioners
Status: Not implemented for Petitioners

Civil Courts suffer from lack of knowledge of working of defence services, their ethos, discipline etc

What a joke!

If such an argument were to be accepted, then there should be no Courts at all for any field and we should have only specialized departmental bodies in all areas of law. By this logic, a judge cannot comment on a criminal matter since he/she does not have knowledge of forensic science, a judge should not preside over a matter involving taxation since he/she does not have knowledge of taxation, and he/she should not preside over any service matter of any department since he/she suffers from lack of knowledge of working of that particular department. It would also be beneficial for the General to read up a little more and realize that in the United Kingdom, the Judge Advocate General (who, unlike the JAG in India, is an actual Judge adjudicating military matters) is a Civilian functioning under the Ministry of Law and Justice and this ‘lack of knowledge’ theory does not function in any democracy. The same logic was expressed for tax matters by the government when it created the National Tax Tribunal but the said Tribunal was declared unconstitutional by the Supreme Court last year. Perhaps the General also does not realize that our High Courts since independence have stood as a rock behind the rights of military personnel, veterans and widows and have rendered multiple decisions which have affected the quality of life and the basic existence of the military community.  

AFT was constituted after pressure was built up through a series of articles in the press

Who would tell the good General that the creation of AFT has nothing to do with ‘articles in the press’. The AFT was created as per the observations of the Supreme Court in Lt Col Prithi Pal Singh Bedi’s case and was only supposed to function as an Appellate body for Courts-Martial and not for service matters. It was also supposed to be an ‘independent’ body manned by civilians. However, what came about by way of a poorly drafted Act by our own was that it was ultimately (wrongly) constituted both for appeals from Courts-Martial and also for service matters and was incepted under the dependence of the Ministry of Defence and that too with a Bench comprising a retired Judge and a retired General.

Senior defence officers were co-opted to keep the AFT alive to peculiar conditions of the defence services

While this argument of the General looks attractive from the outside, the presence of retired officers results in lack of objectivity from the viewpoint of a litigant. While many retired officers who are members of the AFT have no doubt rendered an excellent service, there have been many instances wherein their subjective analysis (being from within the system) has hampered the process of law. A litigant before a Tribunal may feel (rightly or wrongly) that a person who himself was a part of the same system- the action of which is being challenged, would not be able to be objective. It may simply be an incorrect perception at times, but as the age old saying goes, “justice should not only be done but also seem to have been done”.

One of the High Courts ruled that verdicts of AFT could be contested in High Courts defeating the very purpose of AFT and that this would further delay matters

The General does not seem to know that High Courts were entertaining challenges to AFT verdicts rendered against military personnel, veterans, disabled soldiers and widows based on the Seven Judge Constitution Bench decision of the Supreme Court in L Chandra Kumar’s case wherein it was held that direct appeals from decisions of Tribunals would not lie to the Supreme Court and would have to be filtered through a Division Bench of the High Court. The General does not analyze that the Supreme Court is very slow in interfering in challenges arising out of decisions rendered by Division Benches of High Courts which are Constitutional Courts while the same is not so in cases of decisions by Tribunals which are merely departmental quasi-judicial bodies. If the system is functioning well for the CAT, it would function well for the AFT too. The General says that almost 2000 decisions of the AFT have not been implemented by the MoD. Well, he is wrong, the number is more than 5000 and civilians do not face the same problem at all with their jurisdiction vested in the Administrative Tribunals and the High Courts. And the General perhaps does not know again that this non-implementation was taken cognizance of by the High Court when the AFT failed to take coercive action against the MoD. 

Ruling of the SC has come to the rescue of veterans but has not gone down well with lawyers

Firstly, the General’s statement about lawyers is detestable and distasteful since many of us have worked tirelessly to reduce litigation against the military community and also to ensure that justice becomes accessible for the military community, especially of the lower ranks. There are countless lawyers who have rendered pro bono service for downtrodden litigants. The General should stop worrying about the monetary aspects of the profession of law but should instead worry about the elimination of the rights of litigants for accessible and affordable justice. Does the General have an idea about the cost of litigation in the Supreme Court? Does the general know that this ruling simply means that the MoD would continue filing en masse appeals in the Supreme Court alleging ‘point of law of general public importance’ in every decision rendered in favour of litigants while the litigants would have no forum to challenge verdicts rendered against them? Does he know that only the army of Govt lawyers in the Supreme Court stands to gain by this and not the other ‘battery of lawyers’ as stated by him?

Secondly, the General should understand that this ruling has made justice impossible and totally out of the reach of the military community since the AFT now becomes the first and the last court and an appeal cannot be filed before the Supreme Court unless the case is so exceptional that it involves a “point of law of general public importance”. Therefore a person who loses a case in the AFT has nowhere to go. There were hundreds of cases where the AFT had decided against defence personnel, disabled soldiers and widows and the decisions were reversed by the High Courts which granted relief to them, the General should inform us whether he would like to take up the role of providing relief and benefits to all those who lose in the AFT and are barred by the latest decision from approaching any forum for relief, or sponsoring the cost of litigation in the Supreme Court which again is not as a matter of right?

To take some examples,

I can point out hundreds of more cases, but I am sure the good General, who is happy to remain a lesser citizen as compared to the common person on the street, would be incapable of rendering any assistance to them except writing another article on a subject the complexity of which he cannot fully analyze. The pain, anguish and frustration of a litigant who does not have a right to challenge a verdict rendered against him/her cannot be fathomed by writing in papers by you, I or the General, perhaps this is the reason why many military veteran bodies all over the country have already written to the Prime Minister and the Law Minister expressing how they have been rendered remediless as compared to other citizens of our country. 

The hallmark of a democracy is an independent judiciary, and litigants and the public at large have utmost trust in our Constitutional Courts, but the General feels that it would be better if litigants remain stuck without any vested right of judicial review with a departmental quasi-judicial body functioning under the very thumb of the opposite party in every litigation- the Ministry of Defence, and which does not even possess the basic power of civil contempt. It was therefore not surprising that even the Prime Minster has expressed more faith in real Courts than Tribunals.

General, with all due respect, please stick to military matters.

Tuesday, April 7, 2015

Op-ed in Indian Express today, 07th April 2015: Creating lesser citizens

My op-ed in the Indian Express today (07th April 2015) is reproduced below. The web-version can be accessed by clicking here and the e-paper version is available here.

Creating lesser citizens

Supreme Court order declaring that High Courts will not entertain challenges to orders of the Armed Forces Tribunal curtails military litigants’ rights to justice

Navdeep Singh

Away from the gaze of the mainstream and tumult over Section 66A, on 11th March this year, defence personnel, military veterans and their families were declared lesser citizens- lesser than what they already were. On that day, based on an appeal filed by the last regime but prosecuted by the current one, the Supreme Court declared that High Courts would not entertain challenges to the orders of the Armed Forces Tribunal (AFT) thereby effectively making the said Tribunal the first and the last court for litigants, since, according to provisions of the AFT Act, an appeal anyway does not lie even with the Supreme Court as a matter of right unless there is the exceptional involvement of a “point of law of general public importance”.

The Supreme Court, based on self-deprecating arguments put forth by the Army and the Defence Ministry, also adverted to Article 33 of the Constitution which states that fundamental rights of defence personnel can be restricted or abrogated. Needless to state, from the celebrated Kesavananda Bharati’s case onwards, it is well appreciated that restrictions are limited to maintenance of discipline while performing duties, and extend to other uniformed forces too. Using the plank of Article 33 to deny the right to access justice to litigants hence was an outright overstretch. Even otherwise, majority of litigants before the AFT are not defence personnel but ex-servicemen and their families fighting for minor issues such as disability benefits, correct fixation of pension et al, issues that are personal and definitely not meeting the stringent criterion of ‘public importance’ so as to invoke the highest Court of the land which is already overburdened and not enjoying the luxury of time for constitutional questions.

Lamentably, what the officialdom sadistically succeeded in attaining is that justice becomes inaccessible and unaffordable. Imagine a poor widow in Kerala engaging a lawyer in the Supreme Court for challenging an AFT order denying her a few hundred rupees of benefits and then attempting to plead that her appeal involves a ‘point of law of general public importance’. It is yet another story that this is one of the reasons why direct appeals to Supreme Court were frowned upon by a Seven Judge Constitution Bench in L Chandra Kumar’s case.

A minority of those connected with the officialdom was trying to sell this disaster to the gullible defence community as a celebration portraying ‘quick justice’ and the ‘elimination’ of one layer. Needless to state, this has not eliminated one layer but eliminated all layers altogether unless one can prove ‘public importance’ with deep pockets to afford litigation in the Supreme Court. Shortening of judicial process cannot be at the cost of precious rights of the citizenry and the value of judicial review can only be fathomed through the eye of a losing litigant, not by the system which has an army of lawyers at its disposal to mindlessly file appeals in the Supreme Court at taxpayers’ expense. A multi-tier approach to judicial redressal is the hallmark of every democracy and had ‘elimination’ of layers been a profound need then we would have had a system of appeals from the lowest court of Junior Division Civil Judge directly to the Supreme Court. Central Government employees and retirees aggrieved by orders of the Central Administrative Tribunal have a right of judicial review before the High Court and then the Supreme Court whereas the system has called for snatching similar rights from defence employees, ex-servicemen and even their family members.

The writ jurisdiction of our High Courts is designed to keep authorities and tribunals within the bounds and confines of law and to keep a check on their recklessness and rashness. With all due respect to the AFT and its good work, it functions under the same Defence Ministry against which it is supposed to pass orders, the Defence Secretary against whom decisions are to be rendered sits on the selection (and reappointment) panel of AFT Members and also in the investigation committee to probe complaints, if any, received against them, and hence a vested right of judicial review by jurisdictional High Courts assumes utmost importance. The AFT does not even possess usual trappings of a court, including powers of civil contempt or a procedure to get its orders implemented. It therefore came as no surprise just two days after the ruling that the Supreme Court, in another case, reiterated the known position that Tribunals are inferior to High Courts and that judicial review by High Courts is a part of the basic structure of the Constitution which cannot even be taken away by a Constitutional amendment.

This decision, based on the plea of the Defence Ministry, has rendered litigants remediless and without any vested right of judicial redress- the only such instance in constitutional history in analogous situations. Till the issue is revisited by a larger bench of the Supreme Court or the lynchpin Sections repealed, litigants shall continue to languish in lower confines compared to the rights guaranteed to other citizens, a situation neither warranted nor envisaged by the framers of the blueprint of our democracy- the Constitution of India.

The author is a High Court lawyer and founder President of the AFT Bar Association and also a member of the International Society for Military Law and the Law of War at Brussels.

Tuesday, March 31, 2015

Is it all about the money, honey?

Some observations are painful. Some battles lonely.

It is particularly painful to observe how the military community raises a big hue and cry whenever there is a controversy related to a matter involving monetary benefits, but the guns fall silent when the issue is equally, or even more pertinent, important and urgent but then it does not affect people financially. These are insidious matters which affect the rights and privileges of the fauj as a whole but many of us are not bothered.

It is because of this very attitude, especially prevalent in the officer community, that we are where we are. We get what we deserve. To take an example, the recent post on the biggest blow to your fundamental rights since independence which is going to affect you for the rest of your lives resulted in only about 8 published comments on the blog but the pensionary arrears flowing out of the decision on the pension fixation arising out of the 6th Central Pay Commission evoked about 50 published comments. The op-ed on the way the system is shabbily treating our disabled soldiers, especially of the lower ranks, evoked just 4 comments but "One Rank One Pension" or the rank pay decision of the Supreme Court resulting in financial benefits to officers resulted in 125 comments.

The above is testimony enough that our priorities are aimed in the wrong direction and we are turning selfish by the day. From the thousands of emails I receive, rarely are there some that refer to or speak of or offer help in taming the malaise that has set in on a macro-level in some of these key issues. Mostly the calls and communications seek information on the amount that is due- nothing for others, everything for self.

I would request the defence community to wake up and move beyond wallets and purses. There is lot more to cover. You have to sensitize the society at large and stand up for those who do not have a voice, especially veterans of the lower ranks, disabled soldiers and military widows. You also have to sensitize the government and work hand in hand with the establishment to lift up the unsung and the unheard. YOU have to do it by rising above your own personal gains.

I hope we remember what Martin Niemöller said:

First they came for the Socialists, and I did not speak out-
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out-
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out-
Because I was not a Jew.

Then they came for me-
and there was no one left to speak for me.

Folks, come around....

Friday, March 27, 2015

Gullible military community: celebrating the trampling of its rights

There is something very unique about the military community, and that is, axing their own rights and then celebrating it, realizing quite late as to what hit them!

This short-sighted approach has cost us a lot in the past. But then would we ever learn? Of course not!

Which organization would appeal to the Supreme Court seeking abrogation of its own fundamental rights?

Read on!

This post is again about the recent decision of the Supreme Court on an appeal filed by the Ministry of Defence on the jurisdiction of High Courts to entertain writ petitions against orders passed by the Armed Forces Tribunal. The Supreme Court had held that High Courts should not entertain writ petitions against orders passed by the Armed Forces Tribunal and that litigants should file appeals in the Supreme Court instead. 

Some of the members of the military community, thankfully in minority now, were trying to sell the idea of a direct appeal to the Supreme Court arising out of orders from the Armed Forces Tribunal, on the plank of it leading to ‘quicker justice’. Little did they fathom that what they were terming as ‘quick’ justice was in fact the absence of any judicial remedy at all due to the curtailment of the jurisdiction of High Courts. This is so since there is no vested right of appeal before the Supreme Court unless there is a ‘point of law of general public importance’ involved in the case. So effectively, as per the current system after the ibid decision, High Courts cannot interfere and the Supreme Court cannot be approached except in exceptional cases involving ‘public importance’. Moreover, there is no appeal at all provided, even to the Supreme Court, for interim orders passed by the AFT if either of the parties is dissatisfied. Besides that, even if the appeal to the Supreme Court had hypothetically existed as a matter of right, defence personnel or veterans or widows or their families cannot even dream of approaching the Supreme Court for their cases, making the entire concept of justice redundant, unaffordable and inaccessible for them, to say the least.

One of the cardinal principles in a democracy is the availability of judicial remedy in case a person is dissatisfied with a judicial order by a forum- a right available in abundance to each citizen in our country too, including all Government servants, except now for defence personnel, veterans and their families. And this absence of judicial remedy was being celebrated by some as ‘quicker justice’.

Now comes the shocker. One of the pleas taken by the Ministry of Defence (and also in all probability, elements of the Army Headquarters) before the Supreme Court in this case was that Article 33 of the Constitution of India empowers the system to restrict or abrogate fundamental rights of members of the Armed Forces and hence the fundamental right of remedy of a writ petition stands eliminated for the defence community.

This ground professed by the establishment therefore seems to suggest that members of the Armed Forces do not deserve the fundamental rights as guaranteed to other citizens of the Country. Have you ever heard of any organization placing before the Supreme Court a prayer to curtail its own rights? Well, now you have.

I find this plea detestable on multiple grounds:

Firstly, Article 33 purely deals with maintenance of discipline while on duty and has no link whatsoever with the right of defence personnel to seek invocation of the writ jurisdiction of Constitutional Courts, that is, the High Courts and the Supreme Court.

Secondly, the same Article 33 is applicable to all other uniformed services, including the Police, have the rights of those organisations been abrogated or restricted in this regard? Have those organisations or will those organisations approach the Supreme Court with such inane pleas? A civilian government servant can invoke writ jurisdiction of the High Court if he/she is dissatisfied with the order of the Central Administrative Tribunal, but now a member of the military cannot! Does this call for celebration?

Thirdly, most of the cases relate to veterans, widows and family members and Article 33 has no applicability over them. And what would happen to Article 39A which entails equal opportunity to justice?

Fourthly, why on earth would the Army or the Ministry even attempt to suggest to the Supreme Court or elsewhere that the defence community does not deserve the fundamental rights as enjoyed by each and every citizen of this land. Has the top brass analyzed this plea, the decision and its after-effects on the status of members and former members of the military? A dangerous proposition reflecting the worst kind of self-goal.

Mark my words, since independence this has been the biggest hit to the rights of the protectors of our frontiers and their families, and it does seem that many of us have not realized it yet.

Yes, gullible. And sad.

Live with it. Celebrate your defeat. 

Tuesday, March 17, 2015

Pay arrears of pension to all Pre-2006 retiree Central Govt pensioners from 01 January 2006 rather than 24 September 2012 : Supreme Court

As most readers would know, there were anomalies in the fixation of pension of pre-2006 central govt retirees with effect from 01 Jan 2006 and the question was whether pension was to be calculated based on the minimum of each grade/rank within the newly introduced pay-bands or on the minimum of the pay-band itself. The said anomaly was resolved by way of judgements of the Central Administrative Tribunal (CAT) as well as Armed Forces Tribunal (AFT) which inter alia ruled that pension would be calculated on the basis of minima of each rank/grade within the pay-band. The judgement of the CAT was challenged by the Govt before the Delhi High Court. In the meantime however, the Govt itself removed the anomaly but granted the benefits from 24 Sept 2012 rather than 01 Jan 2006 which was the date of the inception of the anomaly.

Hence the exact controversy now stood narrowed down to whether the benefits of the correct pension were to flow from 01 Jan 2006 which was the date from which the 6th Central Pay Commission recommendations were implemented or from 24 Sept 2012 which was when the Govt had decided to remove the anomalies in the pension structure after the said Pay Commission.

The controversy was finally resolved by the Delhi High Court which directed that after removal of the anomaly, the pension arrears were to flow from 01 Jan 2006 and not from the future artificial date of 24 Sep 2012. Never to respect well-rounded judicial verdicts, the Govt challenged the decision of the High Court before the Supreme Court, however the Supreme Court was pleased to dismiss the SLP filed by the Govt in July 2013. The Govt then filed a review petition followed by a curative petition alleging ‘gross miscarriage of justice’ but a 5 Judge Bench dismissed the curative petition too.

The Govt however did not implement the decision across the board and kept filing SLPs and Civil Appeals across the board against decisions of judicial fora in favour of pensioners.

Ultimately, all these cases were clubbed together and were finally heard today by the Supreme Court.

The Supreme Court has today dismissed all appeals filed by the Union of India and upheld the decision of grant of arrears with effect from 01 January 2006 rather than 24 September 2012.

Another closure to another agony. 

The amount of basic pension which was made admissible from 24 September 2012 for each rank can be discerned from this Circular issued by the Principal Controller of Defence Accounts (Pensions). The said amount plus applicable DA/DR would now be admissible from 01 January 2006. 

Wednesday, March 11, 2015

By way of a decision of the Supreme Court rendered today, the right to effective Justice curtailed for defence personnel, veterans and families

It is indeed a dark day for litigation related to defence personnel, defence veterans and their families.

The Supreme Court has rendered a decision today which effectively ensures that the Armed Forces Tribunal (AFT) becomes the first and the last forum for litigants, thereby placing them at a much lower pedestal than other citizens of the country.

By way of the ibid decision, it has been held that orders of the AFT cannot be challenged by affected parties before the High Courts, as was being done till today, and the only remedy to challenge the same is before the Supreme Court by way of an appeal as provided in Sections 30 and 31 of the Armed Forces Tribunal Act, 2007. What however is bound to hit litigants as a rock is the fact that there is no vested right of appeal to the Supreme Court conferred by the above sections and an appeal can only be filed by the leave of the Tribunal in case a “point of law of general public importance” is involved or if it appears to the Supreme Court that the point is such that it needs to be considered by the highest Court of the land. The fact that there is no vested right of appeal has already been solidified by the Supreme Court in yet another decision (Brig PS Gill’s case) and the fact that issues such as pension are not matters involving ‘point of law of general pubic importance’ has also been judicially determined in a recent case (ML George’s case). Of course, most of the issues before the AFT are not of general public importance but matters personal to litigants, which means, that such matters are barred by the statute itself to be taken to the Supreme Court in appeal and hence the AFT becomes the only Court for military litigants effectively closing the right of judicial review. It is yet another story that Sections 30 and 31 of the Act have been plagiarized from the appellate provisions provided for the House of Lords (Now the Supreme Court of the United Kingdom) and have no parallel in Indian jurisprudence as we know it.

The Supreme Court, in its decision today, has also stated that High Courts shall not entertain matters when an effective alternative remedy is available within the statute [Para 34 (iv)], but then, as the above would demonstrate, and also tacitly held by the Supreme Court earlier, that there is no effective remedy available at all since the same is fettered by discretion and also subject to the leave of the Tribunal.

The Supreme Court has cited judgements such as Cicily’s case dealing with other statutes like the Consumer Protection Act. This issue however already stands discussed in PS Gill’s case wherein the Supreme Court had held that while the Consumer Protection Act provided for a vested right of appeal, the Armed Forces Tribunal Act did not. Moreover, in law such as consumer or tax, the litigant has a multi-layered remedy of reviews and appeals. To take an example, in consumer cases, the consumer can first approach the District Forum, then the State Commission followed by the National Commission and then the Supreme Court, as a matter of right. However, in case of the AFT, the litigant starts and finishes with the AFT unless there is a question of general public importance involved. Also, while consumer law deals with consumer disputes mostly between private parties, in case of the AFT the disputes are between an individual and the Government and are determined by a quasi-judicial tribunal functioning under the aegis of the opposite party (The Ministry of Defence) and involve valuable fundamental rights. Even the Members of the AFT are selected by a selection committee which has two career bureaucrats on it, including the Defence Secretary, who is the first opposite party in all litigation before the AFT. To be fair, it wouldn’t be in the fitness of things to opine that the functioning of the AFT has not been up to mark. The AFT has duly brought succour to the defence community by some of its decisions, but then, the performance has not been uniform or even, and as in every democracy, a multi-layered system of appeals and/or judicial review is a legitimate expectation of every citizen when he or she is not satisfied with the verdict rendered by a forum. The situation would have been different had there been an Appellate Tribunal and then a vested right of appeal to the Supreme Court, but that is not the case. Layers cannot and should not be eliminated on the pretext of early dispensation of justice but at the cost of valuable rights and remedies of citizens.

The Supreme Court, in its decision, has also relied upon Article 227(4) of the Constitution, which prohibits the superintendence of High Courts over Courts or tribunals constituted by or under any law related to the Armed Forces. However the words ‘courts and tribunals’ occurring in Article 227(4), which is a part of the Constitution, refer and relate only to courts-martial as becomes clear from Chapter 10 of the Constituent Assembly debates and not to any tribunal such as the AFT which itself was born by way of a Parliamentary Act in the year 2007 many decades after the inception of Article 227(4). Moreover, judicial review under Article 226 still remains unaffected even if hypothetically the bar of Article 227(4) is taken into consideration. Even Section 14 of the Armed Forces Tribunal Act, 2007, itself preserves Articles 226 and 227 of the Constitution of India. The writ jurisdiction under Article 226 is not a remedy of interference but ensures that authorities, including Tribunals, remain within their bounds. The system of judicial review by the High Courts also reduces the scope of recklessness by quasi-judicial bodies since they remain alive to the fact that they are amenable to the writ jurisdiction of the High Courts. 

The Supreme Court has also referred to restriction of fundamental rights of members of the Armed Forces under Article 33 of the Constitution. But the question arises whether the basic human right to judicial remedy can be curtailed? Also, the restriction only applies to members of the Armed Forces and not to retired personnel or to their families, who form the bulk of military litigants. The same restriction in the same Article also applies to paramilitary and the police, have they also been burdened with curtailment of judicial remedy? Obviously not!

The net result of the decision rendered by the Supreme Court today, is the following:

A. That the AFT becomes the first and the last court for defence personnel, retired personnel and their families, unless there is a point of law of general public importance involved. The Supreme Court has already made it clear in other cases that there is no vested right of appeal and matters such as pension do not fall within the realm of ‘point of law of general public importance’. The AFT would also now continue deciding issues involving “points of law” which had recently been prohibited for tribunals by a Constitutional Bench decision of the Supreme Court in the Madras Bar Association case pertaining to the National Tax Tribunal.

B. That there shall now be no efficacious remedy against AFT orders which shall also lead to practical problems. For example if a widow or a disabled soldier sitting in Kerala or Bengal or Assam or Gujarat is dissatisfied with an order of the AFT, he or she would first have to apply for a leave to appeal to the AFT, then engage a lawyer in Delhi for his/her case before the Supreme Court.

C. The litigation that was till now being adjudicated by independent Constitutional Courts would now be determined by a quasi-judicial departmental Tribunal which is not even vested with the powers of Civil Contempt and which has the Ministry of Defence as its parent administrative Ministry, without any vested right of further appeal.

D. The Government with its battery of lawyers in the Supreme Court would continue filing en masse appeals against orders that are favourable to litigants while litigants would not be able to afford litigation at the Apex Court at all.

E. The Supreme Court, which was meant to adjudicate matters of great importance and Constitutional issues, would now open its floodgates for innocuous litigation arising out of quasi-judicial Tribunals, for which even practically it does not have time and space, as opposed to the High Courts which are still able to provide hearings at length.

F.  Defence personnel, veterans and their families become even lesser citizens than what they already were. Justice would neither remain affordable, nor accessible. 

G.   Years and years after independence, the system succeeded in eliminating the eye of our fiercely independent High Courts upon the establishment’s opaque functioning by legislating the fractured Armed Forces Tribunal Act, 2007. The inception of AFT hence did not ultimately prove to be a boon, but a restrain on judicial rights. 

The effects of the decision are deleterious and far-reaching and it is only hoped that other similar pending matters are referred to a larger Bench of the Supreme Court and the situation corrected.