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Wednesday, April 26, 2017

Interview in Times of India on Jadhav issue

The issue of Kulbhushan Jadhav’s sham trial by a military Court in Pakistan has truly hurt the conscience of all those who believe in the rule of law.

My Question and Answer session on the subject was published on the editorial page of The Times of India.

The same can be accessed here.

Sunday, April 9, 2017

Path-breaking move by the Ministry of Home Affairs for the bravehearts of the Central Armed Police Forces

There would be naysayers who would spare no effort to look down upon this move, but to apolitical persons like us, this is one of the most path-breaking concepts brought about by the Central Government for brave-hearts of the Central Armed Police Forces (CAPFs) the nation lost in the line of duty.

www.BharatKeVeer.gov.in is a website where any individual can contribute directly to the accounts of the kin of bravehearts of the CAPFs. The amount can either be contributed to the fund of the kin or to the “Bharat Ke Veer” corpus. A maximum contribution of Rupees Fifteen Lakhs can be made to the kin directly, and in case a higher contribution is made, then the amount over and above Rupees Fifteen Lakhs can be transferred to the corpus or to the account of the kin of another braveheart. 

The corpus would be managed by a committee of eminent personalities and senior government functionaries.

The concept is applicable to 8 CAPFs, including the Assam Rifles and National Security Guard.

Gratitude also goes out to Mr Akshay Kumar for his contribution to this cause and also to the leadership of CAPFs for strongly standing behind their men and women in uniform. 

Saturday, April 8, 2017

SC comes to the rescue of an HIV+ veteran- grants him Disability Pension

In what may be quite a progressive decision by the Supreme Court, a soldier suffering from AIDS and Meningitis has been granted disability pension by the Supreme Court, which was earlier refused by the Army and then also the Armed Forces Tribunal.

HIV+ population continues to suffer stigma in our nation and the military population declared HIV+ faces another major issue, and that is the fact that such soldiers can be discharged from service on medical grounds- at times without pension in case the condition is declared “neither attributable to, nor aggravated by military service”.

Though a harmonious interpretation of the rules would show that the condition needs to be declared attributable to service if the cause is unknown and can only be declared “not related to service” in case the reason is directly discernable such as contact with a commercial sex worker, more often than not, medical boards declare it ‘not related to service’ even if the reason remains unknown. Of course, it is well understood that there are plenty of ways how the virus can spread, and the individual may not even be at fault for his condition, but the stigma till date in our nation is such that personnel affected by the virus are left to fend for their own.

This decision is not just in line with the global effort to make AIDS less stigmatic but also protects the life and liberty of the individual by providing him and his family a means of a dignified life through disability pension and also ensuring medical treatment via the military medical establishment which is only permissible to pensioners as far as in-patient treatment is concerned.

Wednesday, March 22, 2017

Once again the High Court strikes down discrimination by Haryana Urban Development Authority in plot allotment based on ranks

The Punjab & Haryana High Court has once again held that there should be no discrimination based upon military ranks while deciding eligibility of defence personnel for plot allotment by Haryana Urban Development Authority (HUDA).

For those who are not aware, HUDA allows defence applicants to apply for sizes of plots depending upon the rank held by such applicants. This seems odd, since HUDA is not a military organisation and neither is the allotment in a military or official environment where any such hierarchy is required to be maintained. In fact, in my own opinion, there might be persons holding lower ranks having the financial means to apply and own larger plots whereas there might be cases of officers who may not be having the means and would want to own smaller plots, and hence, putting shackles on eligibility based upon rank and that too by a civilian organisation, may not be apt. Eligible applicants should have been allowed to own plots based upon their financial means and there ideally should have been no classification within the reserved category of defence personnel.

The sad part however is that even in the past, the High Court had passed similar orders which were upheld by the Supreme Court but till date the authorities concerned have not amended the policy in line with the decisions.

Friday, February 24, 2017

On Reemployment and Dignity of Labour and an Egalitarian Society

A few days ago, I responded to a tweet wherein a Subedar Major was driving a cab to earn his living. I found the situation odd because of reasons I would articulate in due course, within this write-up.

There were mixed reactions to my response on twitter. Some agreed with me, while some, including a few of my very good friends, stated that we should respect dignity of labour and that there was nothing wrong in driving a cab to earn one’s living.

I fully stand behind the concept of dignity of labour. I also firmly believe in an egalitarian society. I further believe in living a life shorn of redundant ceremonial regalia and working with my own hands. But that is not the point that I wish to make.

My plain and simple argument is that as a society and a nation we have failed to harness the skills of our military veterans, in this case, a Subedar Major of the Corps of Engineers of the Indian Army who would have served in uniform for at least three decades and who retired from a Group B (Formerly known as Class II) level gazetted appointment. Would a Subedar Major be driving a cab if offered a commensurate post-retirement placement by us as national policy? the answer would probably be in the negative. Would an equivalent gazetted police or civil officer be found driving a cab like him? the answer to that too would probably be in the negative.

Egalitarianism and dignity of labour is one thing, however making use of skills and providing a dignified post-retirement re-settlement to soldiers is a different issue altogether. Our soldiers start retiring in their 30s, while some of us may be happy to see them stand guard at the neighbourhood ATMs, that simply is not what they are worth. All organisations have a certain hierarchy based upon skills and experience, and that hierarchy cannot be merely brushed aside or stretched to absurd levels in the name of ‘dignity of labour’, since if that be so, then there would be no harm in a retired Colonel or a retired DIG of Police taking up the appointment of a security guard after retirement! If that be so, then there should be and would be no reason for holding on to any hierarchy in any organisation or establishment.

Though much effort is going into it today, the state of resettlement of our soldiers is not worth praise. To take an example, the Railways, with much fanfare keep initiating special drives for recruitment of ex-servicemen. But what are the appointments? -the jobs of cleaners and helpers and khalasis at Group D level (junior even to a newly recruited Sepoy) being offered to all ranks, including to Junior Commissioned Officers of the rank of Naib Subedar, Subedar and Subedar Major. Appointing a former senior functionary of the Army as a cleaner or even a driver is not dignity of labour, it is an affront to the dignity and experience of the military rank, it is indignity of skill sets, it is exploitation of human resources. A fauji lives and dies for his izzat but there is no protection of his military status on re-employment on the civil side. This old news-report would also show how such appointments were accepted with heavy hearts by ex-servicemen and not willingly. Our society also is blissfully unaware that if soldiers are unable to find a suitable vocation after their early release from the defence services at the peak of their lives, they at times develop complexes and even psychiatric ailments, which, of course is an area not even documented or researched upon this side of the world.

Of about 60,000 personnel who retire every year, the Directorate General of Resettlement (DGR) is able to adjust only about 4000. Even after the DGR had written to all Defence Public Sector Undertakings on directions of the Defence Minister, just 8 PSUs even cared to reply with only about 9.5% vacancies utilized. If such is the response of the official establishment even to the right intentioned moves of the political executive, one can well imagine the overall state of affairs.

Familial and societal responsibilities are at peak levels when soldiers retire in their 30s and 40s. Their income drops down exactly to half when they are released, unlike their civilian counterparts who continue in guaranteed employment till the age of 60. To thrust upon any kind of job onto such veterans in the name of ‘dignity of labour’ not commensurate to their skills or experience, would thus be a disservice, to say the least, in my humble opinion. 

Saturday, February 4, 2017

Developments on the Armed Forces Tribunal and also the overall concept of Tribunalisation

Some positive developments on the tribunalisation front.

The Government, it seems, is finally making concrete moves to place all tribunals under the nodal control of the Department of Legal Affairs under the Ministry of Law & Justice. Rationalisation and merger of various tribunals is also being considered. The process to rationalize 36 tribunals and reduce the number to 18 is going to be effectuated in three phases.

More on this has been reported by The Tribune here.

The Armed Forces Tribunal (Amendment) Bill, 2012, is also under consideration of the Rajya Sabha for the current session. The Bill confers the powers of civil contempt on the AFT, besides rationalizing the tenure and retirement ages of Members and abrogating the system of reappointment to ensure independence.

Tuesday, January 17, 2017

Oped: The Gaze of Social Media, Societal Churning and the Uniformed Forces

My opinion piece on the current societal issues affecting the Armed Forces, published @Swarajyamag:

The Gaze of Social Media, Societal Churning and the Uniformed Forces

Navdeep Singh

In my opinion, no organisation, the uniformed services included, is beyond scrutiny.

And with that disclaimer, I would like to emphasize, that the recent events in public gaze concerning our armed forces, triggered by a video posted on social media by a trooper of the Border Security Force (BSF), must not be viewed in black or white and till the full facts are made known, neither the organisation nor the individual should be the target of preconceived notions or bias. There is no denying that like other large organisations, the security forces also face certain issues at various levels, but that reality must not become a tool for spreading discontentment, frustration or disaffection or an opportunity to create fissures between the leaders and the led. Scandalizing of the subject must cease, but at the same time, such instances, even if assumed as emanating from disgruntled personalities, should lead to all stakeholders trying to ensure resolution and improvement. As I have stated many times in the past, while there is too much focus on anomalies related to pay and pension and other financial matters, real issues which affect the very heart and soul of our organisations comprising brave men and women, are ignored.

Though the incident primarily revolved around bad rations, it has encompassed many facets of life in the uniformed services. Let me comment on certain highlights of various aspects that are being played out in the media and social media. I must warn though that this is going to be a long read.

Us and Them syndrome

All security forces serve the same flag and are expected to work shoulder to shoulder for the same ultimate aim. The episode however again brought to fore statements such as “This is the BSF and not the Army” or “This never happens in the Army” or “There is a problem of leadership in the Police Forces” and so on. That is no consolation. It was the Border Security Force (BSF) this time, tomorrow it could be the Army. Irrespective of the veracity of this incident, complaints on quality of ration are not rare in the Army and we must not pretend to be surprised. Further, the Army has had its share of ration (and other) scams too, and the Army is also not a holy entity removed from the society. The quality of roti, kapda and makaan is talked of in hushed tones and we should have the moral courage to admit and make amends.  While there is no reason for the voices of superiority from military veterans, there is also no reason for former and current members of the Central Armed Police Forces (CAPFs) to play out how they are discriminated against in pay and allowances time and again, especially with regard to the additional Military Service Pay (MSP) granted to defence personnel (Army, Navy and Air Force) but not to those in other uniformed services. It is pertinent to note that there is one inherent difference between the Defence Services and the CAPFs, and that is, while personnel of the former start retiring in their 30s, troopers of the latter retire in their 50s, serving two decades more than the former and in the bargain enjoying not only certainty and protection of livelihood during productive lifetime but also higher lifetime earnings and multiple pay revisions. Similarly, while it is true that the military gets higher allowances in certain field areas, the reverse is also correct wherein CAPFs have an edge. It is a fact that on one hand, over the years, some of the better military specific allowances stand extended to the other services, the same courtesy or reciprocity has not been allowed to the military. Today, payouts such as the detachment allowance, Special Duty Allowance, Tribal Area allowance and Double House Rent Allowance are not available to defence services. Of course, bullets of the enemy do not distinguish between the colour of the uniform and the CAPFs operating in the same area as members of the defence services deserve the same risk-related allowances, but vice versa should also be made applicable. Hence apart from the basic pay, which is broadly the same for all services including the military, there is no comparison of service conditions- you win some, you lose some, and which is absolutely clear at the time of joining service, whether it is the military or the CAPFs. Yes, discriminatory practices such as inequitable allowances must be ironed out. I am anyway not a believer of superiority or inferiority of any service or organisation. All play a role and all are equal.

Excellent system of redressal of grievances in the uniformed forces?

I tend not to fully agree. The number of representations, petitions, non-statutory complaints, statutory complaints and litigation cannot be termed as low by any stretch of imagination. The redressal of grievances theoretically is apt in the forces, but practically speaking there are many rough edges which need to be smoothened out since handling of grievances is personality oriented and there is no thumb rule. On various TV shows during this episode, it was argued that the Commanding Officer (CO) is a father figure and if a person does not get redressal from his Commanding Officer, he can always approach the next senior in hierarchy. Easier said than done. Can a prudent person expect a soldier, who has complained against his CO, to have a smooth time thereafter in the unit under that very CO? Are all complaints made to superiors in the hierarchy even promptly forwarded to them? Both answers are in the negative. Moreover, the CO can only deal with local issues within his control, nothing beyond it, and again, the resolution would be dependent upon personality traits.  It is also well known that the formal system of statutory and non-statutory complaints for issues such as Confidential Reports, disciplinary matters and promotions is a slow grind. While such complaints are supposed to be finalized within 6 months (against the 3 months prescribed by civil departments), despite emphasis by successive Defence Minsters on promptness, complaints are rarely decided in time, unless, let us face it, strings are pulled. What does it lead to? Nothing but frustration and discontentment and lack of closure- aspects that can be easily handled in-house with a well-oiled responsive grievances redressal machinery. To add to the woes, complaints are rejected on points such as ‘incorrect format’ and what not, leading to more disgruntlement. Should soldiers who are cut-off from the world sitting in tough posts on the border be expected to adhere to formats and red-tape and then wait forever to get their issues resolved? Should soldiers remain preoccupied with their pending grievances or perform their duties? Should a few disgruntled ones then be allowed to disproportionately flag these problems and hurt the image of the entire force? There is hence hollowness on display when we hear phrases of praises on the system of redressal of grievances. The reality is that one has to be well connected or street-smart to get himself or herself heard and those stating otherwise obviously do not have the courage to admit the follies of the existing system. Think if you must that we are ‘the best’, but let us strive for making the system even better and ensure objectivity and decisions that are not influenced by any other aspect but the merits of the grievance.

What can be done?

To improve the system of redressal of grievances, some simple steps can be initiated, of course within the four corners of discipline and military efficiency. Steps that would be easy to implement but may not undermine the authority that is needed to command troops into battle.

Going up the hierarchy: In case of a grievance related to an individual’s unit or an officer under whom he is serving, rather than jumping the hierarchy, the person must be allowed to write to the higher formations or Commanders through proper channel, as is permissible under the existing system, but with an additional concept of a direct ‘advance copy’ to the senior officer as a matter of right. Further, it should be reemphasized strictly that officers in the channel would not hold back any complaint or representation for more than the prescribed days and any such delay would entail a notice to the lower unit, officer or formation from where it was supposed to move up. The authority to whom the advance copy is addressed must interact with the affected person and hear him out before reaching a conclusion. Officers should be encouraged not to consider ‘recommendations’ or ‘comments’ from down below as binding and must not shy away from forming own objective opinions by overruling such recommendations, if required.

Opportunity of hearing or interaction: In case of statutory complaints, which are not routine representations as above, but usually involve career aspects, an opportunity of hearing or interaction must be provided to the complainant by the competent decision-making authority or the authority closest to the decision-making authority. This procedure, recommended recently by a Committee of Experts, of which this author was also a member, already stands accepted by the Defence Minister in principle but the implementation instructions are yet to be issued. Explaining the benefits of such an approach, the following was stated by the Committee:

“...Opportunity of personal hearing or personal interaction has many advantages. It is what is known as sunwai in vernacular. Not only does it lead to satisfaction of the Complainant that he/she has been heard objectively by the decision making authority but at times it may also lead to the competent authority getting convinced that what the Complainant is stating is correct and the picture painted by the authorities on noting sheets lower in the chain could be incorrect. It may be pointed out that in almost all civil organizations and even in the Indian Air Force, opportunity of hearing is freely provided which leads to a higher degree of satisfaction level and also harmony within the system. Though the informal system of ‘interview’ is available in the defence services, it is discretionary and not institutionalized and not at the ‘competent authority level’ especially while dealing with statutory complaints. The system of opportunity of hearing also provides a catharsis to individuals who may feel stifled at times and hence would provide an outlet to at least open up before the competent authority. It becomes all the more important in defence services where there is no trade unionism or associations, and rightly so. It becomes even more important in the stratified rank structure environment and physically long distances of location.
Under the current system, complaints of aggrieved personnel are being dealt with by way of a one-way file noting system on which, after a complaint is submitted, the complainant is neither heard nor is given an opportunity to rebut what is put up against his Complaint by the dealing official chain. At times, decisions are taken based on the comments of those very officers/officials who have been complained against giving rise to a question of bias, which could be simply a perception, or even real, and which may not result in closure of the issue with rampant dissatisfaction due to the very reason that a person has not been heard and only a one-sided decision has been taken. There is also a challenge to address the perception that there remains an element of subjectivity in the processing of the Complaints since the system would perceivably remain favourably inclined towards the organisation. It also so happens that on many occasions, especially at ranks other than Commissioned Officers, personnel are apprehensive in approaching the institutional redressal system for the fear of reprisal from superiors. All this would change with the system of institutionalizing ‘opportunity of hearing’ which would not only be in tune with the best practices of the current times, but also in line with decisions of Constitutional Courts, the views of the Hon’ble Raksha Mantri and also DoPT instructions issued from time to time. In fact, it has been emphasized time and again even by the Department of Administrative Reforms & Public Grievances that employees’ frustration rises from the perception of inaccessibility and lack of concern of superior officers, failure to acknowledge and act upon grievances and non-involvement in organizational activities...”
Faster and time-bound redressal: Timelines on grievances must be strictly adhered to and non-processing in time should provide a right of audience for the soldier to the competent authority. Though there must be a balance between individual and organisational rights, the precious personal rights cannot be held hostage to administrative lethargy. Again, in such cases, when grievances are not decided within a particular time limit, to obliterate any negative usage of other unauthorized channels, soldiers must have a system of informing the competent authority directly or through electronic means and the designated authority should be obliged to provide an audience or interaction. It is well known that many complaints are rendered infructuous, including in career related issues, due to the fact that they are not decided in time. I would mince no words in stating that it is truly unfortunate that seven decades after independence we have not been able to even ensure decisions on complaints within laid down time limits, and time limits which, ironically, are themselves needlessly generous- six months in most cases. It should not be forgotten that timely, objective and fair disposal of a grievance is like a legally provided pressure valve which can provide quietus to an issue and bring closure for a person, but if that vent or outlet is not provided, the built-up pressure is bound to escape through routes that would not be palatable.

Social engineering and flattening of hierarchy through technology: The Army Chief’s idea for grievance boxes is a welcome step but it may prove to be ungainly since he alone would not be able to monitor grievances from such a large manpower, and some of such complaints would be frivolous and personal rants which would have to be filtered out. Since interaction with senior officers is not feasible at all times due to the nature of duties, there must be an established system for more interaction in real time with seniors without being put-up through staff officers with a hackneyed approach, and for designated grievance officers in all formations who must remain insulated from influence and subjectivity. This actually is nothing new. The Army’s Western Command under the aegis of the then Army Commander, Lt Gen KJ Singh, had initiated a blog wherein all ranks were free to float suggestions, recommendations and grievances. In fact, it could be loosely termed as an electronic and more feasible version of a grievance box advocated by the Chief of the Army Staff. It provided real-time outlet for such issues thereby eliminating simmering undercurrents. Further, this was not done as a mere formality but grievances and recommendations were acted upon and star recommendations were also publically awarded. At the same time, the same Army Commander had also done away with an eatery in a market within the cantonment which had separate sitting spaces for families based on ranks. While hierarchy within official spaces and establishments cannot be avoided, and in fact may be desirable, public spaces for families in cantonments need to be rendered totally rank-neutral. The sahayak system is also in news. Though the uniformed services often emphasize the ‘buddy system’ and ‘breaking bread together’ and the ‘camaraderie’, it is still felt in certain quarters that there is a clash of societal dynamics which has resulted in personnel resisting work outside their charter of duties. The system, by whichever name it may be called, is an integral part of operational environment and apart from relieving Commissioned Officers and Junior Commissioned Officers from the rigmarole of mundane day to day issues, sahayaks act as a bridge between the troops and their leaders. Just as support staff is provided to officers to enable them to perform duties efficiently in peace and staff appointments, sahayaks are entitled in units and formations on war establishment. If an officer cannot be expected to type all his letters without assistance of a clerk in a staff appointment, he cannot also be expected to perform routine administrative tasks and run around without assistance in a field appointment. Rules anyway prohibit combatants from being used for domestic chores but it does seem that the concept has faltered and has become hazy due to unfortunate aberrations. If there is so much hue and cry on this subject, obviously there must be things that require to be fixed. With some very senior officers and veterans brushing aside the voices raised against the exploitation of the system, we should simply ask ourselves whether the system is being misused or not. Even if the answer is uncomfortable, it should not be ignored, and with changing social dynamics, the effort should be to provide a practical alternative without compromising the dignity of combatants. Due to frequent movements, military families have to struggle for survival in new places every now and then, they even have to live most of the service life without the breadwinner. It is a nightmare, to say the least. There is hence requirement of support but the answer to that must be brainstormed by the establishment itself. Whether it is staff specially recruited for the purpose, whether it is manpower arranged out of contributory funds at each station centrally after due verification or whether it is a trained and organized system of housekeepers and maids with background checks at military stations paid by those who employ them- it is for the stakeholders to devise and find a solution to. In fact, the few cases of transgression cannot be blamed upon the uniformed organisations per se or even on officers, we have simply failed to provide an alternative, and in other cases, it might be a sense of entitlement at play and being miserly with a tendency to live on the house, crudely put. Yes, the issue is blown out of proportion every now and then with extreme stands on both sides, yet, a long lasting solution needs to be found.

Stress and strain of military service and its effect on mental health

At times, there is a thin line between misdemeanour and a psychiatric condition, a line which is not discernable to an untrained eye. Stress and strain is the hallmark of military service, which is recognized universally, all over the world. The fact that a person is away from his family most of the year and cannot hence fulfil domestic commitments results in added pressure which at times becomes unbearable. It is not a sign of weakness, we’re all different constitutionally and the body reacts differently to varied stimuli. Under such pressures, certain individuals tend to develop conditions which need care and sensitivity and not disdain. For example, a person may wander out of the lines due to his mental condition and while a mature leader of troops may rightly refer him to a psychiatrist, another may simply declare him absent without leave. Similarly, mature leaders would understand that while intoxication on duty could be an offence, alcoholism could well be a psychiatric condition. While I do not mean to defend the BSF trooper we all saw on TV, I found it a little odd for him to be summarily branded as a ‘bad hat’ or an ‘alcoholic’. If so, he required psychiatric care and not entrustment with a weapon in an operational area! Officers should not forget that stress and strain of service and effect on mental health is much higher on lower ranks than on higher ranks. A great contributor is the inability to cope up with requirements back home, seemingly small little matters- education of children, property disputes, registration of house, municipal work and so on, and an insensitive administration does not help. While officers are still able to get a grip by speaking to their civilian counterparts and are blessed with better education and wherewithal, personnel of lower ranks are at sea, the result of which is stress which is then also wrongly blamed on ‘domestic reasons’ while the actual cause is military service and its exigencies which keep troops away from efficient and timely resolution of the multitude of issues back home, but that is another story for another time.

The times we live in are complicated and there are no easy solutions. The answers, or even the questions, cannot be so simplistic as many of us seem to believe. There is no wrong and no perfect right, there is no black and there is no white. The only truth in this is the fact that this perhaps is an uneasy era, but just like the society, the uniformed forces shall also self-adjust with these times. The churning is not comfortable but all stakeholders must show flexibility and balance to tide over this temporary disquiet. 


Major Navdeep Singh is a practicing High Court lawyer, author and the founding President of the Armed Forces Tribunal Bar Association. He is Member of the International Society for Military Law and the Law of War. Apolitical, he writes on law, issues concerning the military, public policy and governance.

Friday, December 30, 2016

Faux regalia in the real unforgiving world: Look at yourself in the mirror, Part 2

Like many times in the past, I debated if I should pen my thoughts today- free flowing, without structure. I debated because, as I have stated before, critical pieces are at times used as tools by some frustrated souls to pinprick and grind axes against the system, rather than to introspect, improve and march ahead.

But then I still decided to. And I shall be honest.

I have written about this earlier but the wedge between the civil and the military world has since widened as the voices have become shriller. And then I saw this very important and much valid statement by General VP Malik in his recent interview to The Times of India:

“...The chief must have wide experience. The chief should also be civically literate and conversant with the principles and precepts expressed in the Constitution...”
Though we are on a different subject and not discussing higher defence appointments here, the statement is important since it comes from a former Chief of the Army Staff, who, even though retired in 2000, seems much more progressive and practical in thought than many of our current commentators. Valid since it makes one realize the fact that the knowledge of basic constitutional concepts, democratic or even administrative principles is not optimum within the military community. To put it crudely, many serving in the military are not aware how things work.

A few days ago, at an official gathering where I had a longish conversation with some highly competent officers of the defence services, certain issues that I speak of above, stuck me hard. One, that there is an extreme lack of understanding, knowledge and acknowledgement of contribution of other professions or services. Two, that the basic insight regarding our national institutions is lacking. Three, that there is some kind of a feeling as if only the military is serving the nation while all other professions are lax, dishonest or both. Four, that there is strong resistance to change and things have come to such a pass that attempts to impress are made not by the depth of learning or knowledge but by scratching the surface and flowery English.

In the same conversation, I was also taken aback by a number of broad statements such as “80% of judiciary is corrupt” and questions about how the judiciary enjoys the month long vacation of Courts in the month of June or the promotional avenues in the civil services or how the Central Armed Police Forces are paid more than the Army while they are not performing duties that are as exacting. Urban legends, basically. Pitiful though is the fact that while the military itself is facing a multitude of challenges, people have time to discuss other professions from afar regarding which their knowledge or understanding might not be of the desired level. Or, to take an example from the above, though not germane to the subject, the actuality that it is only the Constitutional Courts that close for vacation in June and not others and that even the said Courts continue to function with vacation judges and that overburdened judges at times have to hear hundreds of cases per day, read their files in the morning and evening and night, apply mind on the precious rights of litigants, pronounce judgements, dictate decisions, sign orders and so on. Just as military personnel avail about three months of leave in a year, perhaps judges (and lawyers) too deserve a break to maintain mental equilibrium or even to look through pending work which piles up during court days, and they too are serving the society in their own way. Talking ill of babus is also fashionable, repeatedly comparing the military and the bureaucracy. I don’t think that a young newly inducted IAS officer looking after the magisterial, executive and revenue functions of his sub-division or a young IPS officer supervising the policing and security in the same area is encumbered with any less onerous responsibility than a newly commissioned defence officer. While we continue to ascribe duties to our officers (in the name of so-called grooming) that are not commensurate with their ranks thereby ourselves lowering the prestige and sheen of the military brass, paradoxically, on the other hand we speak poorly of other professions. 

What stands out distinctly from the above is that there is not enough education being imparted in our academies or institutions about other occupations and services with whom we have to work shoulder to shoulder in today’s complex environment. The vision expressed by General VP Malik for senior staff is as much valid for the youngest officer since if he or she does not build up knowledge in the formative years, the foundations shall remain weak even on attaining higher ranks. If not given attention, the knowledge about concepts such as the constitutional separation of powers or even elementary notions that would be clear to a civics student in school, would remain elusive. The net result would be tunnel vision and spending time forwarding fake social media and text messages spreading disaffection, discontentment and planting falsehoods against seniors and the establishment instead of focussing on positive well-rounded advancement to take on challenges in the real world. There would always remain people like us who shall steadfastly stand behind the genuine causes of the men and women in uniform, but not at the cost of causing injury to the reputation of  others. While IAS and IPS officers get to know more about the Army while on attachment, the equivalent exercise is missing in the defence services. Shouldn’t Gentlemen Cadets in batches be attached for a week to a Police Station to understand its functioning and the challenges faced by policemen and women or basics of investigation or criminal law? Shouldn’t they be attached at the local tehsil to comprehend its functioning? Till the time there is cross faculty exposure, which is the call of the times even for essentially military functions, seminal growth shall continue to dodge us.

The military must not lag behind in real terms by way of some kind of show of faux superiority or holiness. Sense of entitlement must yield and make way for sense of legitimate expectation. Theoretically camaraderie is stressed upon but unlike the civil services, there are sharp divisions within the system when it comes to benefits, cadre management or  even welfare schemes whether it is a struggle between the Army, Navy and Air Force, or between the Combat Arms and Combat Support Arms or between Arms and Services, and at times even between Regiments. Healthy competition is replaced with peer jealousy and crab mentality. Problems are created for own comrades at each level. Whether it was the Dynamic Assured Career Progression Scheme (DACP) for doctors or medical facilities for our Short Service Officers or certain benefits for women officers, most impediments emanated from within the uniformed community, not from outside. While we discussed whether women commissioned officers, who were allowed to serve for 14 years, were fit enough to serve for 6 more years to earn pension or not, the Central Armed Police Forces deployed women personnel at jawan level even at high altitude locations and for extreme riot control, without controversy. While we with our high noses debate how the military is superior to the ‘paramilitary’, the latter have implemented the DACP smoothly while our Chiefs of Staff Committee (COSC) at one time made presentations to the Ministry on why it should not be implemented, a fact now made use of by financial mandarins. While civil organizations discussed with their employees and pensioners how best to present their views before the pay commission, the military refused to share its memorandum to the pay commission even with its serving rank and file and also refused to part with it under the RTI Act. While lawyers of civil departments go out of the way to assist the courts graciously and fairly when it comes to litigation of their employees, our officers brief govt lawyers as if it’s some kind of war being waged against litigants- of course they are not at fault since they are pressurized by higher headquarters to ‘win cases’. Promotion related litigation for empanelment under the Central Staffing Scheme with the central government has sharply decreased in civil departments because all promotion related and other administrative policies of the Department of Personnel & Training (DoPT) are now available online and transparency is valued, while in the defence services, officers keep groping the dark to get a grip on what has hit them. Sporting events and movies come to a halt if a military VIP enters and till he is given his separate large chair in a separate enclosure with better cutlery, something unheard of in today’s civil set up. During the OROP agitation, certain veterans were full of hate towards civilians, while civilian pensioner organizations, on the contrary, supported us to the hilt even during the Anomaly Committee meetings during the recent disability pension reduction controversy. While we continue to rightly feel proud about the military, its discipline and impeccable service to the nation, there are a few things we can learn from others.

Operations and strategy, though nationally of utmost importance and also pertinent to military morale, do not affect the quality of life or basic dignity of defence personnel and their families. In every sense of that sphere, civil departments and services are doing better than the defence services- in cadre management, in welfare related issues, in facilities, in progressive personnel policies. So next time we talk about others, we must go to the nearest mirror and take a very hard look. To end, I must add that what I write above should not make you gloomy since it is simply a call to embrace positivity and reformatory thought with an open mind. Till when would we thump our chests about our past and rest on our laurels? This feel-good regalia could quite be useless in the actual world.

Get real.

Sunday, December 18, 2016

Movement on the implementation of the Committee of Experts

As reported by the media, there has been some movement on the implementation of the recommendations of the Committee of Experts established by the Raksha Mantri on litigation and improving the system of redressal of grievances.

Some of such recent media reports are linked as follows:

Friday, December 2, 2016

Tribunalisation in India: my op-ed in Swarajyamag

My oped that appeared in Swarajyamag: “The Problem Of Indian Judiciary Everyone’s Talking But Doing Nothing About-Tribunals”

Go slow on tribunals, strengthen real Courts

Reckless tribunalisation must be halted

Navdeep Singh

The recent statement of the Chief Justice of India on non-availability of Chairpersons, Members and Infrastructure for Tribunals again reflects a dangerous obsession with these bodies which have their roots in the emergency era and the 42nd Amendment. While much focus remained on the NJAC verdict, what escaped notice is the irony that the cardinal principle of separation of powers is more under threat via reckless tribunalisation in our country, which tacitly, is not only ensuring the control of the uninitiated over judicial functioning but also curtailing access to justice for the common citizen. Away from the real or perceived friction between the executive and the judiciary, it is widespread tribunalisation which is slowly eating away core judicial functions thereby denuding real Courts and imperiling actual independence of the judiciary. Even the Prime Minister’s very valid and introspective question last year on the desirability of tribunalisation has failed to dent our complacent thought-process. And it seems that many in the judiciary and government also are not keen to rock the boat for the concept provides comfortable post retirement sinecure. It further appears odd that provisions for appointment of senior retired Constitutional Court judges have been made in many tribunals which at times are just courts of first instance. It is yet another interesting matter that the ostensible motives behind creation of tribunals, that is, of easing the burden of the regular judiciary and quicker dispensation of justice, are the biggest myths, with the backlog increasing, rather than decreasing, after creation of tribunals in certain jurisdictions.

So how does tribunalisation affect judicial independence furtively?

Firstly, tribunals operate under the thumb of parent administrative ministries against whom many of them are meant to pass orders, therefore remaining at their mercy with visible and invisible strings for facilities, infrastructure and also rule-making. Despite deprecation of this arrangement and constant efforts by the Ministry of Law & Justice to bring all tribunals under its own nodal control to offset such conflict of interest, there has been steadfast resistance by ministries eager not to loosen their respective grips. Even as back as in August 2001, Mr Arun Jaitley, the then Law Minister, had informed the Parliament about the positives of bringing tribunals under the said Ministry in line with Supreme Court directions, but fifteen years down the line, the situation remains the same despite the desire of the political executive to undertake reforms. More than anything else, the confidence of litigants is shaken by the very thought of approaching a quasi-judicial body which operates under the aegis of the department against whom the case has been filed.

Secondly, the Secretary of the said ministry sits on the panel for selecting and reappointing the adjudicating members and also has a role to play in disciplinary committees. For instance, the Defence Secretary is a part of the committee for selection and re-appointment of members of the Armed Forces Tribunal, and the said Secretary is that very officer against whom all tribunal orders are to be passed.

Thirdly, under the garb of providing cheaper and informal adjudication, appeals have been provided, on very limited grounds, directly to the Supreme Court from some tribunals making access to justice a far call with some litigants accepting injustice rather than challenging orders simply because they cannot afford prohibitive costs of litigation in the apex court. The very valid dicta of the Constitution and Three Judge Bench of the Supreme Court  in the cases of L Chandra Kumar and RK Jain respectively, favouring judicial review by the affordable and accessible  High Courts from the orders of tribunals, has had no positive effect.

Fourthly, persons who at times have served as part of the same ministries are appointed as members and who carry with them their own personal experiences and over-familiarity making justice subjective as compared to judges who bear no such baggage and are trained to be objective. This is not to suggest that all non-judicial members are alike, some of them might be outstanding in approach, but it is too dangerous to rely on fortuitous personality-oriented traits. Further, they might be excellent professionals in their own fields, but just as legal or judicial professionals cannot be expected to be trained in other fields, members of different vocations cannot be expected to imbibe judicial temper one fine day, and judicial functions are not hit and trial experiments.  As back as in 1951, Simon Rifkind, an American Judge, for the same reason, famously lambasted specialized courts by stating that such systems reinforce the seclusion of that branch and further immunize it against the refreshment of new ideas which constitute the very tissue of any living system of law. He added, “in time, like primitive priest-craft content with its vested privileges, it ceases to proselytize”.

Fifthly, a majority of non-judicial members are not legally qualified and hence are not even eligible to appear before such tribunals while they are allowed to exercise judicial functions while sitting on the bench. 

Sixthly, some tribunals are not even vested with powers of civil contempt thereby leaving them toothless qua enforcement.

The Supreme Court and many of our High Courts have expressed grave concern on almost all aspects flagged above. As stated at the outset, the Prime Minister too, last year, spoke about his dissatisfaction with tribunalisation, but then directions of Constitutional courts and words of the highest of the political executive are being held hostage to administrative lethargy, cussedness and not so praiseworthy intentions, which should be unacceptable in a constitutional democracy.

To salvage, and to ensure that tribunalisation does not threaten the judicial fabric of our country, the following pointers may warrant attention:

(A) All tribunals must be immediately placed under the Ministry of Law & Justice and finally an independent National Tribunals Commission, totally out of the purview of parent ministries. The Income Tax Appellate Tribunal (ITAT) which functions under the Law Ministry (and not the Finance Ministry) is a healthy example of such an arrangement. Members of tribunals must be given the best of facilities to attract the finest talent, but then the facilities and infrastructure must not be from the departments against which the tribunals are meant to pass orders.

(B) To offset conflict of interest, the Secretary of the department against which the tribunal is to pass orders must not be associated with the selection process. Further, the ‘dangling carrot’ syndrome of re-appointment must be abrogated for former judges as well as non-judicial members. Legislation dealing with tribunals must ensure that at best High Court Chief Justices or Judges or lawyers with impeccable credentials fulfilling the criterion of appointment are made eligible for appointment of Chairperson or Judicial Members, and not Supreme Court Judges, in order to maintain the majesty and dignity of the highest Court of the land.

(C) Tribunals should only be allowed to be constituted in highly technical matters where scientific expertise of non-judicial members is required, such as engineering and electricity, or in benign areas such as consumer rights where an informal approach is preferred.

(D) Tribunals must not be allowed to encroach upon core judicial functioning of regular Courts in disputes which are essentially civil in nature or disputes between individuals and the State involving fundamental rights. Instead, regular judiciary should be strengthened to relieve their burden and judges should be allocated consistently stable subject-wise rosters as per their aptitude and expertise. Another desirable system is introduction of a concept akin to the newly introduced Commercial Courts which exercise special jurisdiction and decide cases in a time-bound manner and within the existing judicial set-up thereby boosting the confidence of litigants and the citizenry.

(E) There must be no direct appeal to the Supreme Court from a tribunal with original jurisdiction. At least a three tier hierarchy with a time-bound framework be conceptualized for all tribunals out of which one should be a vested right of appeal or judicial review. It must also be realized that High Courts are much more accessible and affordable for litigants than the highest Court of the land approaching which is almost impossible for the common citizen. The appeal thereafter from the High Court to the Supreme Court should be restricted only to the rarest of rare cases involving points of law of general public importance. The system being followed from orders of the Central Administrative Tribunal (CAT) is a perfect positive example worth emulation.

(F) All tribunals must be provided with the power of civil contempt and a statutory execution procedure to give effect to their decisions so as not to render them toothless.

Paradoxically, the landmark verdicts on judicial independence throughout our independent history or the much cherished concept of separation of powers would remain consigned to the book if we allow reckless and extensive tribunalisation, since in this roundabout manner, though the Courts would remain independent in theory, their functions practically would stand transferred to tribunals thereby bringing to naught all positive strides in this direction, and if, in the words of the Calcutta High Court, which I often quote, “matters of justice and equity are left to tribunals manned by the uninitiated to pronounce upon, justice becomes the casualty and inequity the order of the day”.

A shrill alarm raised by the Courts as well as the highest of the political executive, but would it awaken the legal-judicial ecosystem?