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Tuesday, February 19, 2019

Withdrawal of litigation against disabled soldiers


It gives me immense satisfaction in stating that I have been given to understand that the Raksha Mantri Ms Nirmala Sitharaman has directed the withdrawal of appeals filed in the Supreme Court against disabled soldiers by the Ministry of Defence since the past many years. As is well known, multiple appeals till the highest Court of the land were filed against disability benefits granted to disabled veterans on judicial intervention by various Courts and Tribunals despite the issue attaining finality with a series of decisions rendered by the Supreme Court in favour of disabled soldiers. In fact, progressively going a step further, it seems that directions have also been passed by the Minister to concede appeals filed by disabled soldiers in the Supreme Court on a case to case basis in all matters which are found to be covered by judicial dicta.

Though this matter and many other issues related to litigation and redressal of other grievances were considered by a Committee of Experts in 2015 constituted by the then Minister Mr Manohar Parrikar, of which I was a Member, the implementation of the accepted recommendations was moving at a slow pace but we were assured by Ms Sitharaman about concrete action earlier this year.

This provides closure to a very emotive issue wherein though the financial implications were minimal still the grim reality of a nation fighting its own disabled veterans was heartbreaking since it is well known and universally recognized how stress and strain of military service, a regimented lifestyle away from the family and inability to effectively cater to domestic commitments result in aggravation of existing physical and mental conditions of the women & men in uniform.

I express my thanks to Mr Parrikar and Ms Sitharaman in dealing with the subject sensitively and in a totally apolitical manner devoid of any political inclination.

I also express my gratitude to Mr Rajeev Chandrasekhar, Member of Parliament, for consistently taking this up with the political executive till resolution, without whose support this issue would not have reached national consciousness, and of course my dear friend, the brave Major DP Singh, who remained at the forefront of the cause.

The recommendations of the Committee of Experts can be accessed here (Paragraph 2.2.1 specifically deals with disability pensions).

The official press release of the Ministry of Defence when the Committee had rendered its recommendations, can be accessed here.

Thank You.

Friday, February 1, 2019

Ministry of Defence enhances the minimum payout to casualty pensionary awards to a basic pension of Rs 18000


The Ministry of Defence (MoD) has issued orders for basing the minimum basic pension @ Rs 18000 for disability pensioners (combined rate of service element/service pension + Disability Element), war injury pensioners, liberalized family pensioners and special family pensioners.

The orders of the MoD dated 29th January 2019 can be accessed by clicking here.

The above orders have been issued in consequence of directions of the Department of Pension & Pensioners’ Welfare (DoPPW) issued for all such pensioners under various ministries, issued on 12th October 2017.

The original orders of the DoPPW can be accessed here.

Note may be taken of the fact that the orders are likely to only affect cases wherein the existing total payout is less than Rs 18,000. For example, in a case where the total of basic service element/service pension plus disability element is currently less than Rs 18,000, the same will be upgraded to the said amount. 

Saturday, January 5, 2019

Joint opinion piece on defence decision making, in 'The Tribune', authored by General VP Malik and Maj Navdeep Singh

General VP Malik and I attempt to address issues related to the decision-making process in the defence establishment, in "The Tribune". The unabridged version is as below:


Defence Decision-Making Process:
Time for Change

General VP Malik
(Former Chief of the Army Staff)

Major Navdeep Singh
(Advocate, Punjab & Haryana High Court)


Decision-making process of the defence establishment with its myriad complexities has always remained a vexed issue. It has been a cause of alienation with people in uniform, court cases, delays in acquisitions and procurements, lack of integration & jointness, and several other aspects of national security.

This opinion piece does not break much new ground but the aim is to emphasise the need for our political leaders to debate and decide on this issue promptly, and to that end, this attempts to work as a catalyst.

Under the Rules for Allocation and Transaction of Business framed in 1961 the defence services have absolutely no role or powers ascribed to them. The Defence Secretary is allocated responsibilities for “Defence of India” and ancillary facets during war with the “Armed Forces of the Union” and the three Services Headquarters subordinately designated as “Attached Offices of the Department of Defence”.

The professional heads of the three services charged with the command of the armed forces, and responsibility of national defence as well as conduct of war, neither have been accorded a status nor granted any powers in the edifice of the Government of India. By default, the Defence Secretary is thus tasked with the “Defence of India”.

The obvious reason is that for many years after independence, there was deep-rooted suspicion, fuelled by happenings in the neighbourhood, as to whether the military in India would continue to remain in barracks under the control of the cabinet or would take to adventurism. Although the defence services have remained staunchly loyal to the Constitution and acquitted themselves admirably in peace and conflict, certain vested interests have not allowed obliteration of that suspicion. As a result, the military has been kept in a box, not allowed to participate in the policy or decision-making loop.

Our political establishment, hence, despite the vastly changed strategic environment, nature of conflicts, and the imperative need to consult defence chiefs directly on such issues, has been deprived of this facilitation. Some Defence Ministers like Jaswant Singh and Pranab Mukherjee, and Prime Ministers like Indira Gandhi and Atal Bihari Vajpayee, met the service chiefs more often than others. But the institutionalised system and the defence decision-making process was never resolved.

Over a period of time, certain changes have been incorporated. Limited financial powers have been delegated to the defence services and the file movement system also minimally altered. But these changes remain cosmetic. The spirit and substance of the integration of the Ministry of Defence including decision-making have not been altered. The nomenclatures may have changed from “Army Headquarters” to “Integrated Headquarters of Ministry of Defence (Army)” but within the Ministry itself, the old terminology and processes continue to be followed. Even today, despite the manifesto of the ruling party calling for “ensuring greater participation of Armed Forces in the decision-making process”, not much seems to have moved towards resolution.

While the inherent suspicion towards the military waned with time, the pretext of ‘checks and balances’ gained momentum for keeping the defence services out of actual decision-making. Needless to state, the requirement of such checks and balances is entirely vital and no single entity, the military included, can be provided a free run without scrutiny or without being counter-questioned on its proposals. But the question remains as to whether a counter-balance as at present, wherein decisions of the Chiefs of Staff Committee (COSC) are allowed to be commented upon in the form of file noting initiated by junior non-specialist civilian employees should continue, or whether a collegiate system be instituted at the apex level wherein collective defence related recommendations or decisions can be taken subject to the approval of the political executive.

The system currently followed, besides causing suspicion and distrust, often results in delays and sometimes imbalanced decisions. While this is not to say that the decisions of the military should be allowed to prevail without question, we only suggest that the conclusions should be based upon collective deliberations with collation of proper views of all stakeholders on an equal footing before they are put up to the political authority for sanction.

It is also a matter of concern that in some spheres where powers have been delegated, the system is being rendered infructuous with too much leeway being displayed by military authorities. To take an easily understandable example, powers to determine disability benefits of officers have been conferred upon military authorities and appellate committees. However, even after processing such proposals in consonance with the rules and after due affirmation by executive, legal and medical authorities, the same are abandoned by the senior military authorities based upon objections by junior finance officers whose duty is only to calculate expected financial outgo and not comment upon the merit of the subject.

One solution that comes to our mind is instituting a format such as the “Defence Board”. Within that, a judicious mix of senior military and civil officers could debate proposals and then reach a consensus which can then be put up for approval of the Minister. The Defence Board is not an alien concept among democracies. The United Kingdom has a Chief of Defence Staff for its strategic and operational needs as a single point military consultant. Additionally, it follows a Board system chaired by the Defence Minister (Secretary of State for Defence) with members from civil and defence services and also non-executive board members.

Closer home, the decision-making for the Railways via the Railway Board is featured in the Rules of Business. The decision-making process of the Board is headed by the Railways Minister and comprises a healthy mix of members from different cadres and technical streams under a Chairman from the Railways.

India has a large strength of defence services involved not only in operational and strategic matters related to external defence but also in its internal security and disaster relief and many other types of aid to civil authorities during peace. Like other democratic nations, our defence forces have their own ethos, culture, human relations issues- discipline, human rights, welfare, morale and other functional requirements. In these days of information technology and rapid socio-political changes, we cannot have a system where the affected parties or the end-users are not consulted adequately, or where decisions are taken, based on faulty inputs by non-experts through one-way file notes. The correct system would require a face-to-face real time collegiate discussion before decisions are made.

“Defence of India” involves not just the military but almost all other institutions of the government; even its citizenry. However, our Constitution requires the military to work under ‘political control’ and not ‘bureaucratic control’ under the rules framed decades ago in a different geo & socio-political milieu.

As in all democratic nations, our military has an important role to play in building and protecting the nation. Being treated as a redundant appendage in governance militates against the basic grain of a democracy and also hampers execution of its modern day role.

It is a fervent hope that the political environment would rise and find a juste milieu ensuring an equal voice for all stakeholders with the ultimate decision-making power vested with the political executive as laid down in our Constitution.

---

Tuesday, December 18, 2018

Three articles on disabled soldiers


Disabled soldiers are again in the news.

It is heartening to see growing awareness on the subject, especially the invisible disabilities that one cannot see.

It is also heartening to see positive statements of the current Raksha Mantri that she is committed to withdrawing all litigation against disabled soldiers from the Supreme Court.

That said, these three pieces should be read by all of us:

The first one is by Ms Ratna Vishwanathan, a civil servant who has served in the Ministry of Defence. It is ironic that this comes from a former officer of the civil services.

The second one is a well researched piece by Abhishek Dey for Scroll.in.

The third one is by Member of Parliament Mr Rajeev Chandrasekhar for the Times of India, written from the heart. 

Please take out time and go through them.

Thanks.


Wednesday, November 7, 2018

Defence Ministry’s approach to litigation: misdirected, highly adversarial and sadistic (Parts I & II)


(Originally published for Bar & Bench)

Navdeep Singh

This might be the oddest and the longest opinion piece I have penned, and therefore it is in two parts, albeit being published simultaneously. And again, like many times before, I must forewarn, this is written to encourage discussion and introspection, not to cause commotion, disparage any entity or provide leverage to pessimistic sentiment.

In the late 1990s/early 2000s, as per the then existing roster of the Punjab & Haryana High Court, litigation related to service matters of Union of India was being allotted to Justice RL Anand, a strong but humane and sensitive Judge. While hearing a matter of an old military widow, an observation he made in open Court, not in jest, but in all seriousness, got stuck in my mind. He said, that if a litigant files a writ petition stating therein that the sun rises in the east, the Ministry of Defence (MoD) and the Army would surely file a written statement opposing the plea and saying that it rises in the west. The Judge was of course referring to the blind opposition put forth by the defence establishment in all cases with the singular aim of defeating the other side, sometimes fairly, and at other times by attempting to play smart. Of  course, during those days litigation used to end at the High Court, about a decade later things came to such a pass that the MoD, in its avatar of an insensitive raging bull, ensured by 2014 that more than 90% of its litigation in the highest Court of the land comprised appeals filed against disability benefits to its own maimed and disabled soldiers, at times involving amounts as little as a few hundred rupees, in matters already well settled by law.

While the Army commands utmost respect in our society, and deservedly so, and rightly remains one of the most venerable institutions in all facets, the track record of the MoD in litigation shows utter lack of grace and total absence of moral courage in admitting a fault. The objective solely remains to prove a litigant wrong and wear him or her out by contesting each and every claim, even if covered by existing decisions of Constitutional Courts or by the Government’s own policy, and at times also to subtly inject wrong information in Court proceedings or attempt to colour or influence the proceedings with one-way information by keeping it hidden from the litigant. Litigation is treated highly adversarial as if it is some kind of war being raged against petty employees which has to be won at any cost! Most of the pleas are opposed out of ego and most of the appeals are filed out of prestige. So much so, that this hook or crook attitude to ‘win’ cases has, in the past decade or so, assumed alarming proportions, with patently false information being projected right till the Supreme Court.

The dogged persistence to resist judicial dicta was again visible earlier this week in Lt Gen Manomoy Ganguly Vs Union of India [Writ Petition (Civil) 980/2018 decided on 29-10-2018] wherein the officer, of the rank of Lieutenant General, was made to undergo four to five rounds of litigation to get what he could have been granted in the first go. It is now that the Supreme Court has put an end to his agony.


Some recorded instances of unethical stands in Courts

Even off hand, many cases come to mind where incorrect submissions are, thankfully, recorded in the judgments, for posterity, though this is only a minuscule part of the malaise.

In PK Kapur Vs Union of India (Civil Appeal 4356/2006 decided on 01-02-2007), where the litigant was appearing in person for extension of certain pensionary benefits as provided to post-1996 retirees to pre-1996 retirees also, the Ministry of Defence put across the plea of an Office Memorandum (OM) issued on 3rd February 2000 which restricted the benefits only to post-1996 retirees. However, the MoD deliberately did not inform the Court that the Department of Pensions & Pensioners’ Welfare had already extended the benefit of the post-1996 OM dated 3rd February 2000 to pre-1996 retirees vide a fresh OM issued on 9th Sept 2001. The litigant lost his case and it was only years later in KJS Buttar vs Union of India (Civil Appeal 5591/2006 decided on 31-03-2011) that the correct law was affirmed by the Supreme Court. The MoD however still chose to carry on appealing in cases which were disposed by various Courts and Tribunals citing the decision in KJS Buttar’s case and ultimately it was a Three Judge Bench in Union of India Vs Ram Avtar (Civil Appeal 418/2012 decided on 10-12-2014) which settled the law. It is yet another sad story that the MoD has again filed a similar appeal in the already well settled subject as recently as in July 2018.

In Secretary MoD Vs Ajeet Singh Vs Union of India (Civil Appeal 16/2003 decided on 06-05-2009) the MoD informed the Supreme Court, which is again recorded in the order, that a minimum of ten years of service is required to earn a disability pension, while the truth is that there is no minimum qualifying service required for the said pension and a disabled soldier with even a single day of service is entitled to the same.

In Bhola Singh Vs Union of India (Civil Appeal 4486/2002 decided on 10-10-2010), the MoD informed the Supreme Court that there is a requirement of minimum 15 years of service to earn the “Service Element” of Disability Pension. While doing so, it projected outdated Regulations before the Court and also wrongly cited the regulation for “Service Pension” rather than “Service Element of Disability Pension” while in reality the minimum service requirement for Service Element stood abrogated from 1st January 1973. The same trick by citing Bhola Singh’s decision was sought to be applied in another bunch matter being heard by the same presiding Judge in Union of India Vs Sinchetty Satyanarayan (Special Leave Petition 20868/2009 decided on 23-02-2012) but since this time there were multiple lawyers available to rebut the untruth, the MoD quietly withdrew its appeals and conceded the matter when caught on the wrong foot in the Supreme Court.

In Union of India Vs Karan Singh (Special Leave Petition 37928/2012 decided on 10-02-2014), the MoD filed an appeal in a particular matter of a disabled soldier when the Defence Minister had already directed the withdrawal of such appeals through an explicit instruction. When this was pointed out in the Court by the counsel for the disabled soldier, the appeal was quietly withdrawn by the MoD.

In Air Vice Marshal Harish Masand Vs Union of India [119 (2005) DLT 152 decided on 08-11-2004] wherein the Delhi High Court was dealing with the promotion of senior officers of the Air Force, there was a crude attempt to mislead and misguide the judicial process by filing false affidavits. The Delhi High Court thus observed:

If one carefully goes through the note, the least we can observe is that at such highest level instead of placing the truth, ways and means were devised by XXXXX and others who were present in the meeting to conceal the truth. If this could happen at that level, how the rule of law and faith of the Court in the affidavits filed by the Government would survive. We are shocked that ways and means were devised by an officer of the rank of Air Marshal to hide from the Court what was against the Air Headquarters. It was a fit case where we would have ordered appropriate actions to be taken against XXXXX, however, we were told that he has retired in September this year. Therefore, we do not contemplate any action”.

Further observing the machinations, the Court recorded:

“What affidavit to be filed in the High Court in the present case, how Court should be misled, how truth should not come before the Court, ingenuity on the part of Air Headquarters to deny justice to the petitioner would not have been unrevealed but for a note recorded by XXXXX, Joint Secretary, Ministry of Defence”.

Of course, such attempts have since been made multiple times, especially in cases involving promotions of officers, and have not been appreciated by Courts and tribunals.

In Amar Chand Suhag Vs Union of India (Civil Writ Petition 5041/2004 decided on 11-08-2006), the MoD again projected an outdated regulation to deny benefits to a disabled soldier. When the Court was apprised of the reality, the MoD was fined by the Punjab & Haryana High Court which also recorded the following in the order-

“But we are constrained to observe that the respondents while reproducing the relevant legal provision pertaining to the assessment of disability pension have concealed the Regulations”.

Needless to state, the concealment in this case was not by the MoD per se but by the Regimental Records Office of the Army.

In yet another shocking case of Lt Col RK Rai Vs Union of India (Civil Appeal 3101/2015 decided on 16-02-2018), the MoD chose to contest a case against grant of disability benefits to a disabled officer who had sought premature retirement from the Army despite the fact that the Govt itself had issued a letter on 19-05-2017 authorising disability pension to such voluntary retirees. Though the said letter is fully discussed in the final order of the Court, it is beyond comprehension why the same was contested and not conceded at the outset or even declared infructuous when it was now fully covered by Government’s own policy.

In Union of India Vs Balbir Singh (Civil Appeal D 4893/2018 decided on 09-03-2018), the MoD appealed in matters concerning soldiers of the lower ranks which had already been decided by the Supreme Court and the High Courts. The Supreme Court imposed costs of Rs One Lac and observed-

This appeal was filed well after several similar matters were dismissed by this Court. We cannot appreciate the conduct of the Union of India in this regard of filing civil appeals/special leave petitions after the issue has been concluded by this Court. This is unnecessarily adding to the burden of the Justice Delivery Systems for which the Union of India must take full responsibility.”

Yet again, recently, in Union of India Vs Prithvi Singh (Civil Appeal D 8754/2018 decided on 25-04-2018), the Supreme Court imposed a fine of Rupees One Lac on the Union of India for repeatedly filing appeals in matters finally settled by the High Court and affirmed thereafter by the Supreme Court. The Apex Court observed-

“The couldn’t-care-less and insouciant attitude of the Union of India with regard to litigation, particularly in the Supreme Court, has gone a little too far as this case illustrates....The Union of India must appreciate that by pursuing frivolous or infructuous cases, it is adding to the burden of this Court and collaterally harming other litigants by delaying hearing of their cases through the sheer volume of numbers. If the Union of India cares little for the justice delivery system, it should at least display some concern for litigants, many of whom have to spend a small fortune in litigating in the Supreme Court...To make matters worse, in this appeal, the Union of India has engaged 10 lawyers, including an Additional Solicitor General and a Senior Advocate! This is as per the appearance slip submitted to the Registry of this Court. In other words, the Union of India has created a huge financial liability by engaging so many lawyers for an appeal whose fate can be easily imagined on the basis of existing orders of dismissal in similar cases. Yet the Union of India is increasing its liability and asking the taxpayers to bear an avoidable financial burden for the misadventure...To say the least, this is an extremely unfortunate situation of unnecessary and avoidable burdening of this Court through frivolous litigation which calls for yet another reminder through the imposition of costs on the Union of India while dismissing this appeal. We hope that someday some sense, if not better sense, will prevail on the Union of India with regard to the formulation of a realistic and meaningful National Litigation Policy and what it calls ‘ease of doing business’, which can, if faithfully implemented benefit litigants across the country.”


Attitudinal Problem, putting pressure on officers dealing with litigation and getting personally involved with cases

In a Committee of Experts constituted by the Raksha Mantri in 2015 on sentiment expressed by none less than the Prime Minister to reduce litigation, especially appeals filed by the Government, of which even this author was a member, we were perplexed when many officers came to us with presentations portraying the methods of filing ‘faster appeals’ rather than methods to reduce appeals. Of course, this militated against the very reason why the Committee was constituted. We had to repeatedly question and counsel many officers, while recording in so many words, that litigation was not a war or a sport that they had to score a ‘win’. We also had to regrettably record in the Report as to how contemptuous language was used against the judiciary by certain elements and how suggestions were made to overreach Courts. All this reflects a strange kind of arrogance which is unacceptable in a democracy. Shockingly, proposals were made before the Committee that members of the judiciary dealing with matters of the Armed Forces should be ‘sensitised’ and there should be a consultative mechanism between the executive authorities and Members of the judiciary. Such statements clearly point out to the lack of basic understanding of the concept of separation of powers and that persons in key appointments feel that judiciary functions like some sarkari office where things are done by hobnobbing, interaction, liaison and overreach. It is not even understood by the system, it seems, that within a courtroom, both parties are to present their cases and the bench is supposed to render decision as per law.

As stated in the beginning, it is also very frightening to see the total lack of grace in accepting a wrong in Courts. While officers of many departments including the Ministry of Home Affairs in parallel litigation, have no qualms in conceding when a particular case is covered by existing case law or even admitting any wrong committed, this trait is rarely seen in the case of MoD or the defence services though lot is said about the virtue of ‘moral courage’ in the military milieu. So much so that even senior officers get personally involved in innocuous litigation putting pressure on young officers, including those of the Judge Advocate General’s Branch (JAG) with phone calls, signals and what not! Undue pressure is exerted to ‘win cases’ and officers are questioned when a case is ‘lost’, not realising that in every litigation, one party has to win and the other has to lose and this is an everyday affair in Courts all over the nation.

This undue pressure also encourages young officers dealing with litigation to show over-enthusiasm and at times, over-smartness, which might help in the short run but not in the longer race. Does it behove senior appointments in the military set-up getting intimately intertwined with proceedings of matters on promotions, pensions, minor disciplinary issues, welfare polices etc? Is that the official mandate? Should that be the focus? Aren’t there other real ‘military’ issues to look after? No real battles to fight? While legal officers of other departments including the uniformed services of the Home Ministry act in an autonomous manner in their functioning with full authority to take a stand or decision on behalf of the system, the representatives of the military, on the other hand, are always terrified of their chain of command.  The Government and its entities are supposed to be faceless organisations and there is no reason to get personally involved or individually entangled in cases out of administrative egotism. This fleeting happiness of winning a point by over-smartness such as maintaining ‘shadow files’ or ante-dating documents, creating documents or asking counsel to change legal opinions also might earn one some brownie points and impress certain bosses but the damage caused by these stunts to the institution, its reputation and the morale of soldiers, veterans and military widows is permanent and irreparable. You never know when the shoe shifts to the other foot!

In fact, the attitude of the system in decrying litigants and using accusatory language was very nicely preserved by the Delhi High Court in one of the cases, wherein it observed:

“...It is also necessary to record here, with some regret, that the pleadings of the Army, in this case, were combative and adversarial. References to the petitioner and XXXXX more often than not had an accusatory note. At no point of time does the Army appear to have thought it appropriate, as an institution, to extend sympathy...Would it then have mattered if the Army had officially said "Sorry". It is time for all of everyone to move forward- beyond egos, beyond perceptions of "propriety" (whatever that means in such cases) and as institutions, to reach out to those with hurt feelings. Doing that shows humaneness and courage; stony silence is not machismo. It is hoped that this is a wake-up call for the Army to take remedial measures in such cases...”


Trying to override judiciousness by creating an unreal noise in the name of ‘national security’

A strange kind of behaviour in litigation is also displayed in routine matters such as promotions when officers representing the establishment try to overawe the Court and the litigant by behaving as if they are dealing with nuclear secrets of the State. This attitude, which was never found acceptable in the High Courts, has increased after the inception of the Armed Forces Tribunal (AFT). Officers in uniform, representing the establishment, try to pass on papers in ‘sealed covers’ to the bench to provide a one-sided story to any litigation. Sadly, while the High Courts tend to rebuke such behaviour, this practice has become routine in some of the benches of the Armed Forces Tribunal. In fact, the aim of this practice is very simple, that is, to steal a march over the litigant by overplaying certain documents while underplaying others, since the litigant then has no possible way to rebut what has been placed before a bench. There have been moments wherein in the open Courtroom, officers in uniform have walked up to the bench literally to show documents at the back of the litigant. What image or perception would this project to the litigant or others present in the Court? In the judicial system of a democracy, the petitioner is the dominus litis, but it seems it’s the other way round in military litigation.

What is brazenly incorrect in encouragement of this system also is that while transparency laws are now all encompassing with even cabinet notes open to public scrutiny, here it is attempted to convey to the judicial system as if heavens would fall if a particular case is decided in favour of a particular individual. Noting this behaviour, the Chandigarh Bench of the AFT in Brig Dinkar Adeeb Vs Union of India (OA 2948/2013 decided on 30-08-2013, later upheld by the Supreme Court) had deprecated the conduct of the Military Secretary’s branch in trying to pass on a file to the bench without showing the same to the Petitioner after the case had been argued, and it was stated by the bench that “no such attempt should have been made”. It is not understood as to how can administrative or promotion matters be shrouded in secrecy? At best, the names of other officers in such proceedings can be blurred or blocked and the rest of the papers can be placed on record.

Courts usually only accept documents in sealed cover wherein the security of the nation is involved or if it’s a case with ramifications on relations with foreign powers or an issue involving fiduciary relationship such as contracts etc. This attitude also recently found disfavour with the Supreme Court in Hav Sham Dass D Vs Union of India (Criminal Appeal D 14045/2018 decided on 12-07-2018) wherein the soldier’s services were terminated however he was not allowed to peruse the documents related to his termination on the pretext of ‘national security’. This is what the Supreme Court observed on the matter:

We may only clarify that every single relevant document pertaining to the appellant’s termination will be allowed to be inspected as per the Rule. We make it clear that no document shall be allowed to be denied to the appellant on the so-called ground of national security.

Strangely despite multiple decisions by the Central Information Commission and the High Courts, the ‘opinion and findings’ rendered against delinquent employees are not passed on them in the name of confidentiality. Meaning thereby, the employee must not know what has been found against him/her and on what basis thereby leaving the employee defenceless and groping in the dark. Interestingly, basing disciplinary action on such a faux cloak of secrecy was shattered by the Supreme Court last week in Union of India Vs Col AD Nargolkar (Civil Appeal 10686/2018 decided on 24-10-2018) wherein the Supreme Court noted-

“To top it all, while giving the aforesaid findings, Court of Inquiry (COI) has referred to the 'discreet inquiry' which had found the allegations to be correct. At the same time, this discreet inquiry was not proved before the COI. We fail to understand as to how it could become the basis of findings of the COI when no opportunity was given to the Officer to meet the same.”

Clearly from the looks of what has been in vogue, Courts should be extremely slow in taking the word of certain instrumentalities of the State on face value. It must however be emphatically stated that it is not the Counsel representing the Union who might be at fault, since the lawyers too, mostly, are kept in dark of the reality of it all. In my personal opinion, such transgressions should not be let off lightly by Courts and tribunals merely because the other side presents itself to be hallowed since it deals with national security. Absolutely not. Organisations dealing with the defence of the nation must be held to even greater probity and judiciousness since injustice itself is the anti-thesis of discipline. No entity must be allowed to get away with the thought that certain organisations hold a right to some special privilege, much less the privilege to misguide.

Incorrect litigation data to Ministry of Law and Justice

Interestingly, the jugglery is not restricted to own rank and file, elements of the MoD even have the propensity to confuse their own political bosses and also other ministries. In data provided to the Law Ministry, the MoD reported pendency of only 3433 cases relating to the said ministry, the MoD also reported zero contempt matters. The Data is still available on the official Law Ministry website, See Slide No 6. The truth however is that more than 15000 cases were pending in the AFT alone which can be seen on Page 21 of a Parliamentary Committee Report. Moreover, as on 01-07-2015, about 4390 applications for contempt or execution of orders were pending in the Chandigarh Bench of the AFT alone and the number of contempt or execution applications in other benches, the High Courts and the Supreme Court would be in addition. The data of pendency in the Armed Forces Tribunal in July 2018 was about 17000. Hence, if even the Ministry of Law & Justice can be at the receiving end of manipulation by some mandarins of MoD, what can a common litigant expect? While the Ministry of Law & Justice lists the MoD as the fifth highest litigant based upon the imperfect data provided by it, the fact remains that in service matters, it is in reality the highest litigant since Ministries of Finance and Railways are burdened by tax related litigation/appeals and accident claims respectively over which they have no control. Moreover, while the MoD is known to file appeals in the Supreme Court in matters involving even a few thousand of rupees (if not hundreds), the Ministry of Finance admirably does not appeal unless the matter is worth Rupees One Crore.

While the Supreme Court has called for the government and its instrumentalities always to be responsible litigants, and there is change in the last decade or so as far as many central government departments are concerned, the same has had no effect on military litigation. The attitude is a reminder of the following words on litigation induced by government agencies by the Supreme Court in Urban Improvement Trust, Bikaner Vs Mohan Lal  (2010) 1 SCC 512:

“4...They cannot raise frivolous and unjust objections, nor act in a callous and highhanded manner. They cannot behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers is brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to be corrected.

5. This Court has repeatedly expressed the view that the governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice....

6. Unwarranted litigation by governments and statutory authorities basically stem from the two general baseless assumptions by their officers. They are:

(i) All claims against the government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest court of the land.

(ii) If taking a decision on an issue could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the Court and secures a decision....”


The Government has a huge task at hand. It must not trust what is put up to the political executive by way of file notings from below, blindly. Notes are prepared so as to create a bias in the minds of the competent authorities thereby making wise decision-making an uphill task. The only way to resolve this quandary is to ensure a well-rounded system of consultation with all stake-holders and selected affected parties. In absence of the same, the decision-makers would continue to remain trapped in echo-chambers. 

While we, the ones dealing with military litigation, shall remain, waiting for Godot!



Original links @ Bar and Bench:




Major Navdeep Singh is a practicing lawyer at the Punjab & Haryana High Court, the founding President of the Armed Forces Tribunal Bar Association at Chandigarh, Member of the International Society for Military Law and the Law of War at Brussels and author of ‘Maimed by the System’.


Friday, October 26, 2018

The implication of the adultery ruling of the Supreme Court on the military

I write on the implication of the Supreme Court ruling on adultery on the military for The Quint:

In wake of decriminalisation of the offence of adultery by the Supreme Court of India yesterday, many voices emerged questioning the usage of the term stealing the affection of a brother officer’s wife commonly used in the military. In fact, the decision might have more implications in the defence services than the general society since it is in the former that the charge of adultery is mostly pressed into service and has led to convictions and not the latter.

The term does sound archaic, and irrespective of Section 497 of the Indian Penal Code, should have been dumped long ago. However it must be kept in mind that complications in a military set-up may just not arise out of adultery per se but due to a variety of other situations which might have an impact on military life and discipline and hence the defence services can still initiate action against its personnel under Section 45 of the Army Act (unbecoming conduct) or Section 63 (violation of good order and discipline) and parallel provisions of the Navy and the Air Force, not for adultery but for other complexities arising out of it if resulting in any disruption or difficulties in the aspect of employment of the individual. But one thing is clear, Section 497 which was the source of power of the ‘stealing’ terminology, now cannot be invoked more so in view of the fact that the Supreme Court has rightly observed that women cannot be treated as chattel, personal possession or property.

The issue, insofar it relates to the military, has been subjected to judicial scrutiny in recent times. In 2014, the Mumbai Bench of the Armed Forces Tribunal had set aside the dismissal of a Naval Commander initiated by the Navy on the pretext of unbecoming conduct arising out of adultery and for exchanging lewd messages with a foreigner. The Government had challenged the verdict but the Supreme Court in 2015 upheld the reinstatement of the officer in service. The exchange in Court, between the then Attorney General, Mukul Rohtagi, and the bench, as reported by TheTelegraph, makes interesting reading.

Further, in 2016, the Kolkata bench of the Armed Forces Tribunal comprising Justice Amar Saran (Retd) and Lt Gen Gautam Moorthy (Retd), had made interesting observations on the subject which merit reproduction:

“...the wordings ‘stealing the affection of a wife of a brother officer’ smack of patriarchy and punctilious mindset. While certainly extra marital relations should not only be discouraged and disapproved in no uncertain terms, to hold only one party responsible, that is, the male and not the female who may be as educated, as mature, even older and senior than the male is reflective of a pre-disposed and biased mindset that also assumes that the wife of a brother officer is the property or chattel of the male and not an independent person in her own right who has the freedom to choose to live her life on her own terms. It does not take into account that in a marriage in the 21st century, a well qualified, educated wife especially one in the Services and from a cosmopolitan background who holds the same rank as her husband does have a mind of her own, a free will of her own, may pursue a path, however abhorrent and objectionable to her husband, including having an affair......While not condoning extra marital relationships, we must, at the same time, reflect upon the changing mores of our society. With women joining the Armed Forces in large numbers, working closely and socialising with their male counterparts, it is unreasonable to expect that the Armed Forces would be immune to social changes in relationships between the two sexes, aided in no small measure by rapidly advancing technology. While such issues adversely impact on unit cohesion and ethos of the Services and should be rightly discouraged, the time has come when aspects such as unfortunate break ups of existing marital relationships, consensual relationships with others and infidelity should not be viewed so seriously as to lead to the dismissal or even graver punishments that the IPC and statutory Acts of the Army, Navy and Air Force provide for.”

The appeal filed by the Central Government in the above case was also dismissed by the Supreme Court.

The military cannot be immune to change, the Supreme Court has not offered a moral judgement or condonation or deprecation of adultery but has merely stated that while it may have civil connotations, it cannot be a criminal offence. In my view, the same must also apply to the situation in the military if the matter is consensual and between two individuals without implication on service life. The exception to this proposition however is that in case it impinges upon discipline or other aspects intertwined with life in the military, then it shall always remain open to action under Sections 45 or 63 whenever it impacts such service parameters.


The military community will self-adjust to changing times, this churning and the interpretation of law, as always

Saturday, September 29, 2018

Resisting provocation and retaining moral edge- my oped with Gen Hasnain today

General Hasnain and I discuss the requirement of strict adherence to human rights by the military even while operating under stressful conditions. The co-authored piece has appeared in The Tribune today.

Indian Army- Resisting provocation and retaining moral edge

Circulation of pictures of a terrorist’s corpse is unmilitary

Lt Gen Syed Ata Hasnain
Maj Navdeep Singh


Both authors of this piece were targets of messages laced with scorn on twitter recently when we steadfastly opposed the circulation of an image of a civilian clicking a picture with the corpse of a terrorist in the backdrop, and also of what seemed like the dragging of dead bodies of the same terrorist just after an operation.

To put the record straight, the first picture was utterly detestable and the second was perhaps articulated out of context after culmination of a military operation subsequent to which the dead body of the terrorist had been tied by a rope and flipped to ensure the disposal of explosive which could put troops to risk. On opposition to the circulation of the pictures, we were, inter alia, informed by self-declared experts that the dragging of the body as seen in the picture was a Standard Operating Procedure (SOP) in counter-insurgency operations and also that terrorists deserved no mercy. Of course the commentators forgot in the bargain, that firstly, the picture was not that of the actual SOP being carried out since the same is carried out by a rope at least 30 feet long, and secondly, a dead body ceases to be that of an enemy or a terrorist and is never mistreated, unless we are competing in barbarism with a neighbour of ours. Needless to state, in this case too, the body may not have been mistreated but the presence of civilians with cameras in such a zone is worrisome.

So why do we feel such pictures should not be circulated? If we dig deep into the issue, such actions can have deleterious repercussions. To begin with, such pictures are bound to be used by inimical elements to spread misinformation about our forces thereby depicting them in less than favourable light. Let us not forget that these are times of psychological-operations where messing with the minds of people and injecting hatred is a more potent tool than the gun. We just cannot afford to be an enabling device for the enemy in this dastardly environment. Such pictures, especially the one with a civilian with a corpse, can also lead to a vicious tit-for-tat cycle of violence with brutal photographs and videos being circulated which has been seen elsewhere in the world and is best avoided.

On the dignity of bodies of terrorists, many have responded with the oft repeated refrain that “terrorists have no Human Rights”. This is a dangerous proposition. “Human Rights” is not a dirty word. It regulates our existence and acts as a shield towards misuse of power by any person in authority. What we have always clamoured for, however, is a balance and equal respect for the rights of the men and women in uniform. Had there been an absence of rule of law, the logic professed for terrorists could well be extended to any criminal or perceived criminal thereby justifying mob mentality. In fact, the Indian Army was one of the first armies to have incorporated Human Rights training and monitoring and it would also be in the fitness of things if the military, institutionally rising above any popular sentiment, corrects the perception on social media when it threatens our basic ethos.

The Indian Army has always guarded against desecration of bodies. An apt example is of Kargil wherein, in the middle of the battle, the bodies of the enemy were not only handed over to Pakistan but also saluted by our troops. True, those were bodies of enemy combatants and a direct parallel with terrorists may not be apposite, however let us not forget that this happened despite the most unsoldierly conduct on the body of Late Captain Saurabh Kalia. Some provided examples to us as to how other nations dealt with such situations. But it may come as a surprise to many that most democracies are very sensitive to this subject. Osama Bin Laden’s body was buried-at-sea by the Americans and mistreatment of bodies is akin to a war crime for them. Contrary to popular perception, Israel absolutely forbids disrespect to dead bodies and professes very strict rules of engagement, including prohibition of usage of human shields and maltreatment of bodies which were banned by its Apex Court and dutifully followed by the Israel Defence Forces. In Nigeria, Sierra Leone and South Africa, maltreatment of bodies is a war crime. Even many other African States which have faced gruesome ethnic violence now provide for protection of dead bodies.

The battle zone is not mathematical. There would be a variety of situations which would require split-second decisions. Therefore imposing a zero-error environment might result in inhibiting the initiative of troops. However, there are aspects where there is no compromise. The true mettle of a soldier only comes to fore under stressful situations where he or she must not stray from military values. While the Indian Army would be ruthless in its operations thwarting terrorism, it would also be the most correct in following the rule of law, the laid down procedures, including respect to the dead. The scrupulous adherence to these ingrained principles is why the Indian Army has retained its reputation. The unnecessary chest-thumping on social media by seemingly bloodthirsty warriors who have not gone beyond video games in real life militates against the ethos of our military and would continue to be treated with the contempt it deserves.

Despite extreme provocations, we cannot be like the other side and that is the reason why the Indian Army retains its moral edge, and continues to prevail.



Lt Gen Syed Ata Hasnain is the former General Officer Commanding of the 15 Corps at Srinagar and former Military Secretary.

Maj Navdeep Singh is an Advocate at the Punjab & Haryana High Court and founding President of the Armed Forces Tribunal Bar Association.



Saturday, September 8, 2018

Implications on the Indian Military: The decision of the Constitution Bench of the Supreme Court on Section 377 IPC

EXPLAINER

The implication of the ruling on Section 377 of the Indian Penal Code (IPC) on the Indian Military

Many have posed questions to me on the above subject and my views were also carried by publications and circulated on social media. However I thought I would clarify my opinion on the matter in a more detailed manner:

Since Section 377 of the Indian Penal Code (IPC) has been read down by the Supreme Court of India to the extent of consensual sexual activity, the same implications shall follow on the invocation of the said Section in the military if pressed into service in terms of Section 69 of the Army Act (AA) which entitles the military to try personnel for offences under the general law of the land.

The term “unnatural” as it exists in Section 46(a) AA would have to yield to the same interpretation as has been applied by the Supreme Court for Section 377 IPC. I do not agree with individuals who have commented that the terminology “unnatural” as it appears in Section 46(a) AA needs to be specifically stuck down by a Constitutional Court or repealed by the Parliament. It has already been held by the Supreme Court that homosexuality is not “unnatural” and hence it does not lie in the mouth of anyone to state that it is not “unnatural” for the purposes of Section 377 IPC or for civilians or other human beings but it continues to be “unnatural” for the purposes of Section 46(a) AA and for defence personnel. Let us also remember that the Supreme Court has not stuck down Section 377 IPC but has merely read it down and interpreted it. Bestiality etc would continue to be “unnatural” under Section 377 IPC as per the judgment and hence would remain an offence under Section 46(a) AA as well.

Disgraceful conduct of a cruel or indecent kind would continue to remain an offence under Section 46(a) AA.

Homosexual activity between two individuals would continue to remain an offence where similar heterosexual activity is falling under the realm of an offence. The decision may protect private consensual sexual activity between two individuals where it is not causing any implication on military service but any homosexual activity which is not consensual or any such homosexual activity which might be an offence in the military backdrop even if it had been heterosexual, would not be protected.

Moreover, no such reservations or worries have been expressed as yet by the official establishment and it won’t entirely be correct to state that the military is acutely concerned or worried. Like society at large, the military also self-adjusts to changes in law or interpretation of law and there is no lack of progressive thought in adapting to new situations within the military, and hence undue controversy need not be generated till any such issue arises, which would be addressed within the four corners of law when required. It may also be appreciated that multiple situations cannot be predicted in such scenarios with due certainty.