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Saturday, May 25, 2019

The Budgam Helicopter Crash: Fog of War and Culpability

I write for The Quint on the unfortunate helicopter crash which is being speculated to have been caused by friendly fire and wherein it was hinted in the media that the concerned officers may be tried for culpable homicide.

The Budgam Helicopter Crash: Fog of War and Culpability

Major Navdeep Singh

The Budgam helicopter crash incident of 27th February in which we lost precious lives of air force personnel, is again in the news.

There were reports in the media that the chopper came down on account of friendly fire and that the Air Force was contemplating trying the officers responsible for the incident for culpable homicide. I even saw reports and comments on social media that the pensionary and other benefits of the families of the fallen would be determined as per the conclusions reached in the investigation.

I personally find the above quite odd for a variety of reasons.

Firstly, while the hint of the friendly fire aspect might be true, I do not feel that a conclusion of all attendant circumstances qua the fixing of the blame can be reached until the statutory Court of Inquiry convened by the Air Force under the Air Force Rules renders its report.

Secondly, in case someone connected with the procedure has casually stated that the officers would be tried for culpable homicide, the statement seems irresponsible simply due to the fact that till now the Court of Inquiry has not reached a conclusion or ascribed blame and hence it would be absolutely reckless and immature for any person officially associated with the proceedings to make such a statement.

Thirdly, the decision to take action against the guilty, if any, is of the concerned competent authorities under law and not that of the Court of Inquiry, which is simply a fact finding body and recommendatory in nature.

Fourthly, even before the conclusion of the Court of Inquiry, and establishment of culpability, it would totally be inappropriate to prejudge the matter and far-fetched to comment upon the sections of law under which a person would be tried. In fact, this is one aspect that the defence services, de hors the instant case, need to be quite alive about, since statements such as “the concerned official(s) shall be given exemplary punishment” start flying left, right and centre even from senior officers on any unfortunate happening or alleged crime, which clearly gives rise to the fear of institutional bias and prejudgement.

Fifthly, the incident, though extremely unfortunate, can plainly be ascribed to fog of war and battle ambiguities, albeit highly undesirable in a limited conflict situation, and would at the most be a case of negligence leading to death (Section 304-A Indian Penal Code), and cannot, by any stretch of imagination, be termed as culpable homicide (Section 299 Indian Penal Code), which requires an element of “intention” or “knowledge”. In any case, there are specific provisions related to such incidents available under the Air Force Act, such as Section 62 (Offences in relation to aircraft and flying) which again grade the wrongdoing into higher and lower category based upon the fact whether the action was wilful or otherwise.

Sixthly, it would be inane to tag the issue with release of benefits to the families of those who unfortunately passed away in this incident. The grant of benefits to the families would have no connexion whatsoever with the culpability of the concerned employees. The families of the fallen are casualties in an operational area and are eligible to full and liberalized pensionary benefits and ex-gratia as is available to deaths in operations. The locale of the incident is a notified operational region.

While the incident was extremely unfortunate, it is hoped and expected that the Court of Inquiry reveals the nuts and bolts of the happenings of that fateful day, not only to establish the truth, but also to ensure that such mishap never happens in the future.

I am confident of the fact that not only would the Air Force go into the very minute details of the matter without prejudging any guilt of any personality involved, but would also display the moral courage expected of it in unravelling the truth.

Irrespective of the regrettable circumstances surrounding this incident, the nation and the defence services firmly stand behind the families of those whom we lost that day in February.

Tuesday, April 30, 2019

Need for the military community to stay away from disruptive and litigious tendencies based on hearsay

I am all for enforcement of legal rights and fully believe that one of the most precious privileges of a citizen in our democracy is the ability to challenge the might of the State. However a recent phenomenon of fanning litigious tendency in the military, that too, based upon hearsay or perceived injustice, is quite alarming.

A false picture is embedded in many minds that litigation or creating an uproar coupled with notional and emotional calls is the answer to everything, forgetting in the bargain that Courts cannot intervene unless there is infringement of a legal right or policy or rule or when there is a patently perverse and arbitrary action. Every time a matter comes to note, many within the military community take recourse to commenting upon it, without even checking its background and veracity, displaying a tendency that goes beyond even trade unionism. Some even start floating calculation sheets based upon intended litigation, again on tittle-tattle, thus raising expectations without reason which might ultimately result in dejection and frustration.

While it is true that the system of redressal of grievances in the defence services leaves much to be desired, and I have written on it earlier, this disruptive tendency might succeed in drawing eyeballs on social media but only a graceful approach, that too limited to real and solid issues, can help in resolution- institutionally or legally. Many members of the military community also start deriding senior military leadership on social media by creating a hullabaloo but take no steps to institutionally resolve a matter by even putting it in writing to the concerned quarters or finally taking it to its logical legal conclusion. Again there might be instances wherein senior leadership would have taken actions that were not well-rounded but that may not always be the case. And where there is actual injustice, again the way to address is to take legal recourse in a refined manner, with malice towards the anomaly, not against the personalities involved.

Not just seniors, even civil servants continue to bear the brunt of the military community on social media. Most of this anger emanates from the real and perceived acts of bureaucracy in the Ministry of Defence. But one must not forget that the actions of elements in the Defence Ministry are not reflective of the entire civil services and neither should one’s vision be so restricted that the impression of the entire civilian staff of the Republic of India is tagged with what happens in some corner of a table of a junior staffer of one ministry in Delhi. The projection that goes out on social media is that the military is being persecuted, which we all know is not the case and one can imagine the negative impact this has on the morale of the rank and file, almost bordering on disaffection. This fastest finger first syndrome is also spilling into other domains. Certain messages with communal undertones are also spread on military groups, some injected by the adversary, and these are further embellished with utterly immature comments not expected from someone who has worn the uniform.

We fail to realise that this subtle injection of hate is meant to divide our society and this subtle injection of disaffection is meant to neutralize the strength of our military and create schisms.

Be aware. Be careful. Be wise.



Thursday, March 7, 2019

Medical facilities to non-pensioners of the military: Historic day for Short Service Commissioned Officers, Emergency Commissioned Officers, World War II veterans and pre-mature retirees

The Cabinet has today extended the Ex-Servicemen Contributory Health Scheme (ECHS) to the above categories of non-pensioners of the military.

Non-pensioner ‘ex-servicemen’ were initially granted medical facilities in Military Hospitals in 1970 but the same were discretionary. Later, ‘pension’ was made mandatory to avail such facilities. Again in 1997, the term ‘ex-pensioners’ was replaced by ‘ex-servicemen’ thereby restoring the facilities to non-pensioners having ‘ex-servicemen’ status such as Short Service Commissioned Officers and Emergency Commissioned Officers (SSCOs and ECOs) who were made entitled to Outpatient (OPD) facilities. However, in the late 2000s, the facilities were withdrawn by the office of the Director General Armed Forces Medical Services (DGAFMS) despite stiff resistance by the Army HQ.

The matter went into litigation wherein the Chandigarh Bench of the Armed Forces Tribunal (AFT) ultimately directed the Government to restore the facilities to the affected ex-servicemen. The Government though filed an appeal in the Supreme Court against the verdict of the AFT.

The matter was referred to a Committee of Experts, of which I too was a Member, which, after deliberating the subject, recommended the following:

(a) Existing limited outpatient medical facilities in MHs to non-pensioners holding the status of Ex-servicemen to continue as per already approved instructions and Services HQ to continue issuing and honouring Medical Entitlement Cards for such facilities as was the case till late 2000s. The entitled non-pensioners also continue to be eligible for medical reimbursement from Kendriya Sainik Board. It may be pointed out here that the said facilities are anyway not entitled to be granted to re-employed ex-servicemen or those who are members of any medical scheme.
(b) The unethical appeal filed against grant of such facilities to own personnel to which actually they were legally entitled to, be immediately withdrawn and such ego-fuelled actions be avoided in the future. We wish such persistence and exertion in pursuing such misdirected litigation is rather used for constructive activities.
(c) ECHS facilities for SSCOs as mentioned, as already approved in-principle by the then Raksha Mantri and mentioned in the Parliament on the floor of the House, be implemented forthwith by overcoming all objections. The same be made applicable to all SSCOs and ECOs and all other personnel released without the benefit of pension but on completion of terms with a gratuity, present and former, with certain amendments as deemed appropriate such as that the scheme can only be extended to the officer and spouse alone and that it would not apply to those who are re-employed with a cover of an organizational medical scheme. The issue of financial implication may not be relevant since firstly the scheme is contributory in nature, and secondly, the then Raksha Mantri has already made a statement to the effect on the floor of the house. Besides bringing succour to our veterans, it would act as a major morale booster to the rank and file and also help attract talent to the Short Service Commission Scheme.
(d) It is recommended that the Government must go all out to bolster the resources of the military medical establishment since they are rendering impeccable services in trying circumstances to our men and women in uniform. There should never be an occasion wherein doctors perform duties under pressure. An environment free of all encumbrances, external constraints and stress must be ensured for the medical establishment to function in an efficient manner
The recommendations were accepted by the then Raksha Mantri Mr Manohar Parrikar but were not given effect to for a long period. The Supreme Court had taken a grim view of the delay and had asked the Government to resolve the matter by April 2019.

The Cabinet has today approved the extension of ECHS to various categories of non-pensioners of the military and it is understood that on the appreciable insistence of the current Raksha Mantri Ms Nirmala Sitharaman, even other categories such as pre-mature retirees, which were not covered in the recommendations of the Committee of Experts or by judicial dicta, have also been brought in the ambit of the scheme. 

Broadly speaking, eligible beneficiaries and their spouses would be entitled to absolutely free Outpatient (OPD) facilities at ECHS polyclinics, however treatment and In-patient (IPD) facilities at ECHS empanelled hospitals would be on payment basis. Further, 50% of such expenditure would be reimbursable for personnel with 10 years service or less and 75% would be reimbursable for those with more than 10 years of service. 

This marks a closure to long drawn travails of affected officers and personnel. My congratulations to them.



Friday, February 22, 2019

Minimum qualifying service requirement of 10 years for INVALID PENSION stands abrogated for uniformed forces

This would probably be one of the most important moves in recent times for disabled personnel of the uniformed forces.

On judicial intervention of the Kerala High Court and further prodding by the Supreme Court, the Government has finally abrogated the minimum qualifying service condition for the grant of Invalid Pension, which till now stood at 10 years, for all those government organisations where services of employees are not protected on sustaining disability.

Concept of Invalid Pension:
Invalid pension is applicable to those government servants whose disability is not related to government service in any manner, even remotely, and for which 10 years qualifying service was prescribed. It is different than disability pension which is granted for disabilities which are related to or deemed to be connected with government service in any manner, such as any disease incurred while a person is in government service. In case of disability pension, there is no minimum service condition prescribed and it consists of two elements- service element and disability element.

The predicament faced by uniformed services:
The service of government servants who incur any kind of disability in service is protected by Section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (now replaced by the new Act of 2016 wherein Section 20 provides the same protection). The said Act protects the employment of disabled government servants and provides that the government shall not dispense with the services of a disabled government employee. The provision also further provides that even in case a disabled government employee cannot be adjusted on any suitable post, he or she may be kept on supernumerary strength till the age of superannuation (60 years in case of Central Government) and resultantly be paid full pay and allowances, and pension thereafter, even if the affected employee is unable to attend to any official duty. The problem however was that the defence services and other uniformed services including the Central Armed Police Forces (CAPFs) were exempted from the operation of the above progressive provision by way of a notification. Resultantly, many members of uniformed services were denied any kind of pension (if their service was below 10 years) when released from service with disabilities without any connection or deemed connection with government service. Hence on one hand, their services were not protected in case of sustaining disability like other government employees, and on the other hand, they were denied pension also which was like double jeopardy for the members of uniformed forces. This issue had been commented upon by me in detail in the year 2012 which can be accessed here for an even better perspective and a comparative chart showing the acute discrimination. The Seventh Pay Commission did not agree with the request of the defence services for abrogation of the minimum service requirement.

The new orders:
On account of judicial intervention by the Kerala High Court and further prodding by a Three Judge Bench of the Supreme Court, the Government has now abrogated the minimum 10 years requirement for grant of Invalid Pension for all those organisations where the service is not statutorily protected on sustaining any kind of disability. This mostly affects the uniformed services. This has been done by way of amendment of Rules 38 & 49 of the Central Civil Services (Pension) Rules, 1972 [CCS(Pension) Rules, 1972]. Changes in military pension rules should also be expected as a corollary, mutatis mutandis, as is the prevalent practice.

The net effect:
The net effect is that any member of a government service who is invalided out or seeks invalidation (seeking retirement on account of disability) shall now be entitled to Invalid Pension irrespective of his or her length of service. Of course, those with disabilities declared service-connected or deemed to be service-connected/attributable or aggravated by service, shall continue to remain eligible for disability pension for which no requirement of any minimum qualifying service is applicable. This directly and positively affects all disabled personnel who cannot continue in service due to medical reasons even when their disability is not related to government service in any manner. Though disabilities and diseases incurred while in service are deemed to be service-connected as per the liberal provisions of the Extraordinary Pension Rules, 1939 on the civil side and Entitlement Rules, 1982 on the military side, thereby entitling such personnel to disability pension without any linkage with length of service, as also time and again reiterated by Constitutional Courts, the maximum benefit of the change would accrue to such personnel who are released from service (or cannot continue in service) due to disabilities suddenly incurred soon after joining training or where there is an element of negligence in sustaining the disability or a purely genetic or congenital disability discovered after joining service etc. This change is valuable to such personnel and protects their livelihood and dignity since they would not have been discharged from service on account of any disability had they joined a non-uniformed service. The discrimination hence stands addressed to a large extent.

The effective date:
The new provision takes consequence from 4th January 2019. However the effect on past retirees is a little ambiguous as of now but it is hoped and expected that past retirees also would be granted the benefit from the above date. This seems most logical since the provisions of CCS (Pension) Rules (which now stand amended from 4th January 2019) in any case do not apply to post-2004 appointees on the civil side who are now governed by the contributory New Pension Scheme (NPS). Therefore by this change, the persons directly affected are those who were governed by the 1972 Rules, that is, only those who were appointed prior to 2004. A minimum guaranteed pension under the NPS is however already under consideration which makes it probable that in view of the ibid change in the 1972 Rules, even post-2004 appointees under NPS would not be left high and dry if released with a non service-connected disability with less than 10 years of service. On the military side, there is bound to be no complication as such since there is no system of a contributory pension prevalent and the new provision should logically, when implemented, apply across the board but with financial effect from 4th January 2019.

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.


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’.