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Monday, June 15, 2009

Armed Forces Tribunal (AFT) appointments underway : Military Jurisprudence - coming of age ?

MILITARY JURISPRUDENCE : COMING OF AGE ?


Navdeep Singh


“Draconian”, maybe not, “archaic”, perhaps

Many pejorative adjectives have been used to describe the present system of military justice in India, but does it deserve such criticism ?. More than the statutes themselves, the problem perhaps is with the executors, the method of understanding the spirit behind, and the final implementation of the statutory provisions of the Army Act, 1950, Air Force Act, 1952 and Navy Act, 1957. The provisions of these Acts, though oppressive in parts, were never meant to be draconian and do have a number of inbuilt checks and balances, but of course the method of using the best of these is open to debate. So what was wrong with the system that forced the govt to bring in the Armed Forces Tribunal Act, 2007 ?, the one line answer echoed in legal corridors would be - ‘lack of an effective appeal’. The same sentiment was reflected by the Supreme Court in the case of Lt Col Prithi Pal Singh Bedi Vs Union of India (1982) where the Court observed that the absence of even one appeal and power to review evidence was distressing and a glaring lacuna.

Where in the world would you find a judicial system without an appeal, here in India of course. The three Acts did not contain a single provision that could be deemed akin to a judicial appeal. There was a provision of pre and post confirmation petitions but these were rarely used in a fashion more than a mere formality. No judicial authority had the jurisdiction to look into or examine the evidence on the basis of which court martial sentences were rendered or the merits of the issues involved. The High Courts and the Apex Court under the writ jurisdiction could of course intervene but only in cases where there was a flouting of statutory provisions or when the sentences rendered were particularly harsh and not commensurate with the offence. The Supreme Court further observed in Ranjit Thakur Vs Union of India (1987) that conscience shaking sentences which are irrationally disproportionate would not be immune from judicial review. The Supreme Court opined that irrationality and perversity were definite grounds wherein Courts could intervene. These shortcomings notwithstanding, it would not exactly be appropriate to say that the three military Acts are without enough checks to avoid miscarriage of justice, there are ample provisions parallel to those available under the criminal system of jurisprudence but the problem remains that unlike the criminal courts, courts martial are presided over not by judicial officers but by officers of the regular army who neither have the acumen nor the bent towards legal and judicial modalities. Moreover, all procedures finally leading to conviction by a court martial (such as Courts of Inquiry, Summary of Evidence etc) are handled by military personnel who may just follow provisions of military Acts and Rules in formal letter but not in spirit - and this makes all the difference. And this also brings us to the answer why a body of professionals such as the AFT is so very urgently required to sit in judgement and appeal over justice rendered to men and women in uniform by another set of men and women in uniform.

The military Acts of India were derivatives of similar Acts of the British and that was the basis why these Acts seemed oppressive. These were moulded as such so as to maintain a grip on discipline over the native Army. The existing Army Act of India, for example, can trace its origin to East India Company’s Mutiny Act, 1754 and the Articles of War of the late 1800s, followed by the Indian Army Act of 1911. Of course this could not be justification enough to retain provisions such as Summary Court Martial after independence or to use terms as ‘customs of war’ in these Acts leading to ambiguity of action by those who want to repress. There is no place for ‘customs’ and ambiguity in criminal jurisprudence and all provisions certainly need to be codified and brought out in black and white. Yes, there may be a difference in the quantum of punishment prescribed for offences in operational and non-operational areas and there may be operation-specific offences but all need to be put in words without leaving any scope of indistinctness in action. Other countries following contemporary systems of justice such as the UK and the USA have since long recognised the need of reducing ‘customs’ to the barest minimum and having an elaborate system of appeal, but India, despite observations by various High Courts, committees and even the Supreme Court, failed to come out of a crude grundnorm which forms the basis of the Army, Navy and Air Force Acts till date.

So how would the AFT help ?. Firstly, the AFT would be a forum of professionals with judicial and military background, a perfect mix to handle legal issues of the military. While the Chairperson can either be a retired Judge of the Supreme Court or a retired Chief Justice of a High Court, Judicial Members shall be former Judges of High Courts. The Administrative Members would be retired Major Generals or above of any of the three defence services. Each bench of the Tribunal shall consist of a Judicial and an Administrative Member. The Tribunal shall have the power to deal with all findings, orders and decisions of Courts Martial and related matters. As a welcome measure, the AFT has also been granted the power to release persons under military custody on bail. The AFT has also been conferred with powers of Contempt. Unlike the Central Administrative Tribunal (CAT), an appeal from the AFT shall lie directly with the Supreme Court.

Besides courts martial, the subject matter of the AFT shall also include service matters such as remuneration, pension, retiral benefits, tenure, appointment, seniority, promotion, superannuation and the like. However Summary Court Martial awards except where dismissal or imprisonment over three months is awarded, would not be under the ambit of the Tribunal. Transfers, postings and leave related matters shall also not be under the purview of the AFT. In case of service matters, even dependants, successors and heirs would be able to approach the Tribunal for justice.

The setting up of the AFT which is bound to bring the much needed relief to military litigants, shall also ensure handling of critical issues by former members of judiciary who would be from outside the ‘chain of command’ and therefore dealing cases with a clean slate with no biases or prejudices. They shall of course be assisted by former military officers - the administrative members, who would, with consensus, be providing important inputs resulting in what hopefully would be well-rounded judicial pronouncements meeting the aspirations of all affected. The AFT would also be in conjunction with the observations by the Supreme Court about providing a proper appellate body for courts martial. But the AFT, without in-house introspection (below) would not be an answer to the shortcomings of the system. What needs to be eliminated is the subjectivity at all levels, starting from initial stages of Inquiry ending with the Trial. The letter of law at all stages needs to be followed in spirit and not as a sheer formality, an effective system of defence for the accused needs to be put into place and senior officers in the chain of command need to be sensitised so as not to interfere in the deliverance of justice in the military. Presiding officers and officers of the JAG Branch have to be absolutely inert from slanted influences and pre-decisions at all levels.

Objectivity, change in judicial perception coupled with the inception of the AFT, hopefully this would put to rest those strong adjectives for military system of jurisprudence.

29 comments:

BC said...

Oh! Thank God, you exist otherwise the delay of implementation of AFT appeared as if the things were to be buried under the carpet.
Maj Navdeep please keep apprising the environment about the development of AFT. Many thanks to you.

mrp said...

MRP said...
Thank you Maj Navdeep for the good news. Hope the AFT would start its work soon. Will the AFT hear the military sevice matters also?

bill said...

Navdeep Will the AFT deal with indivisual/collectively filed cases by veterns related to anomalies & disprities in Pension,Disability Pension rates/rounding off,old Rank pay (Dhanapalan case)etc etc?

digvijay said...

I am so happy to read this ,what a fine thing to happen .I know of thousands who have suffered .der aaye durust aaye , cheers

vp said...

the law was made to rule a slave army and we like fools are still following the law it needs drastic change once i go in politics i will ensure it is changed in fact we as officers are half slaves and pbor are full slaves

chamyal said...

well the question is will it give "justice" to the sufferers or will it be just another tool in the hands of the authorites to "twist" the justice as per their needs ?.

Abhijit said...

Sir, what i understand from your post is that summary trials when dismissal is awarded will be out of the ambit of the AFT whereas court martial except when dismissal is awarded is out. why is this?

Rohit said...

There seems to be some more time when AFT is in place. See this
http://timesofindia.indiatimes.com/Chandigarh/Tribunal-delay-leaves-armymen-in-a-fix/articleshow/4656432.cms

kmpods said...

Dear Navdeep
A well prsented piece and very informative.
It is a long required arrangement which i am sure would benefit a long number of personnel. However nowadays most of the people approach the courts for everything as it is. Hopefully with the AFT having dealt with cases peculiar to the armed forces, in times appropriate guidelines would emerge and the system would improve.
Regards

Navdeep / Maj Navdeep Singh said...

@Rohit

That TOI report is factually incorrect.

Moreover, the Hon'ble HC here has not even adjourned a single case on the pretext that the AFT is soon going to be constituted. In fact the disposal rate of the HC during the period Jan 09 - Jun 09 (in military cases) was one of the highest.

Ramani said...

Dear Navdeep,
Will the proceedings be kept confidential or will they be published like in the "Law Reporter"??

Mohit said...

This is one subject the information on which, like many others, would invariably be discouraged from being proliferated. The wiser you are on such matters - more anti establishment you are branded. (Yaar woh to lawyer admi hai - soldiering kya karega).

But thanks to Internet and people like Navdeep who continue to enlighten in the right spirit. Navdeep sir, you may like to write more on AFT for information of alll of us. Trust me, this blog is no doubt the only source of authentic information on military benifits.

Well done sir!

Anonymous said...

I agree with the concept of having a `Military Appeals Court' but I am not sure if AFT in present form is the answer. I also do not agree with our learned friend Navdeep's description of present army act as British Legacy for a `native army'. We need to remember that before the british there was no Army Act in India nor did any of our great Maharajas deem it necessary to enact one to match and surpass the British. LAstly if the present Army ACt was so bad why has it not been thrown away for last 60 years. Sexcond I also do not agree with our learned friend on the issue of `customs of war'. He suggests that thse are best done away with. The fact is that such customs provide basis to every law. For example the present civil code which forms the bedrock of Indian jurisprudence is based on `catholic customs and beliefs' by virtue of being carbon copy of Eurpoean jurisprudence and that is the reason why Indian Law many a times runs counter to social norms and hence observed in denial (case of marriages between cousins of same gotras in Haryana). AFT in present form is nothing but imposition of civil judiciary on the military. This will slowly but surely destroy very uniqueness of the military. What we needed was a `military system of justice presided by military judge, based on jury system free from command influence and JAG influence. Having provision for appeals but totally manned by Jury composed of people with proven combat record.

BC said...

@ 16 Jun 2009 at 5:55 pm

We have reached at a stage when there is a requirement of civil judiciary over military. This is because it is felt that military judiciary sometime becomes arbitrary and it is influenced by command structure.
You just tell me, it is the same set up which sets up the stage first in the form of various proceedings and thereafter tried the offender.
One thing more, I strongly feel that the period of limitation, in this modern time when things are available in press of a a button, should be reduced further.
Rest hope for the best.

yogi said...

BC@5.56 PM. Let us not nurture false hopes about the capabilities of civil judiciary. Those who disagree will do well to read Arun Shorie's Falling over Backwards as well as The Judiciary and Governance in India by Madhav Godbole.Also please remember that it took more than eight years and sustained public pressure for the Supreme Court to dispose off the case against IMDT and in the interim lacs of illegal Bangaldeshis migrants managed to enter India. Present logjam of pending cases has not prompted the civil judiacry to cut down its holidays.So please avoid premature rejoicing based on false hopes.

IndianACE said...

This happening will surely spread light through the murky corridors of South Block. I hope the fat rats (winners of the race, all!)who infest the rooms there do not get to nibble away at the wires.

I agree with Mohit @ 161536- there will be attempt to scuttle the AFT or keep the environment in the dark.
You shine on- Dear Navdeep.

Anonymous said...

Dear All,
I would like to differ with the vociferous majority. Yes the tribunal is a welcome step. But remember only discipline and good leadership enforces success against heavy odds. My observation in my 34 years of service is that it is the ill disciplined and those who have no real experience of war who will criticize the act. I was eye witness to the success of field punishments to reform more obstinate cases and summary court martial in cases of self inflicted injuries during operations. If you do away with the act as our freedom nay anarchy loving intellectuals many of whom are at best armchair soldiers only want we may see this democracy vanish or morph into something else. HOW MANY CASES OF REFUSAL TO RISK LIFE DURING KARGIL OPS HAS BEEN PUT UNDER THE CARPET?OR TREATED LENIENTLY TO BE POLITICALLY CORRECT?. WHAT ABOUT THE MASS DISOBEDIENCE OF TROOPS NOT REPORTING FOR DUTY DURING BRASS TACKS ON THE PRETEXT OF NOT RECEIVING RE-CALL LETTERS. a SAMPLE INQUIRY CONDUCTED BY SELF PROVED THAT THE TELEGRAMS WERE DELIVERED DILIGENTLY BY THE DEPT IN 99% CASES. OF COURSE THE POWERS THAT BE DID NOT WANT TO OPEN A CAN OF WORMS.It is easy to destroy a set up functioning properly. Only in the case ARMED FORCES YOU WANT TO BURN DOWN THE HOUSE FOR FEAR OF A RAT, Not in the case of police brutality or bureaucratic corruption or ill discipline. There the clamour is to strengthen existing laws and make new laws. Obviously the sponsored press and the candle lighting crowd in front of TV cameras is at work.And of course the liberals will have their space of glory.

Kaps said...

I would call it a step in evolution. While there is no denying that in field operations, the rigidity of the acts is itself a saving grace. Yet, away from the field, there may be many areas where the Acts may not be able to provide a humanitarian face. The interpretation of law and its execution is done by the military through court martials and so on. However, in numerous cases, there is a need to understand the circumstances that lead to a person behaving or acting in a particular manner and yet getting rewarded punishment due to interpretation of law. I feel it is here that AFT can make a difference.

We have been following a law, civil or military, handed down to us by the Britishers. I believe it is pretty comprehensive in itself. Yet there are many amendments that have been brought about due to the need of the 'locals' and their circumstances. Burying the horse even before it has started walking, let alone racing, will not bring about freshness into the system. One can only hope that AFT can bring about the feeling of renewed hope into those who have always felt that justice has been denied to them for right or wrong. AFT will also help put a stop to those hell bent upon criticising the rigid justice system of the Armed Forces.

Anonymous said...

The administrative members who are from the armed forces will provide a archaical element and advice the judges to maintain the status quo so the the Faujis can keep stewing in their own juice

Lt Col(Retd)Vidya Sharma said...

Rejoice Friends!!Just thrieve on this idea.AFT has been conceived & created at long last!I wonder when it is going to function.TWO LONG YEARS HAVE GONE BY AND PRACTICALLY NO RESULTS.We r consoled to hear some appointments.Is it not a step of the Govt to keep the stick of the Supreme Court at bay? We all have seen the fate of the Joint Chiefs of the Staff Committee!!Lt Col Vidya Sharma (Retd).

BC said...

Dear Maj Navdeep,
Hope you are aware that members for the AFT have been nominated, their names are there in the MoD web site. I wish the AFT gets the similar success and popularity as the RTI act has achieved.
I understand that the aim of forming the AFT is quicker and affordable justice to the armed force personnel.
One doubt still remains. Quicker justice is understandable but how it would be affordable is debatable. During the trial who would be representing the defence? Is it the defending officer or the friend of the accused? If the accused has to rely again on a civil council, he will have to probably land up paying a hefty sum. If you say it is the defending officer or the friend of the accused, then again they would be under the influence of their command? Otherwise, I feel that the accused has to competent himself to fight the case which may not be every time possible in case of PBOR.
Or there is something I am missing, please educate me.
Regards.

Beniwal said...

i understand one member of AFT is a naval commodore. that means brig. and above will be members of AFT.

abmehta said...

I would like to utilise yr very popular blog to pay homage to a brave soldier- Lt Gen Joshi. He lost both his legs way back in 1965 or around that yr. He was admitted in MH Pune. He was then a Major and I happened to be in the nearby bed for BP investigation. I was then a Sqn Ldr and posted in Pune. We had wonderful moments together in MH and later during our regular visit to RSI. His rise to Lt Gen and taking over as the first Dy Head of Joints Chief of Staff (the designation may not be fully correct). I had retired by then, but when I learnt about this, it filled my heart with PRIDE for the Armed Foces.

May his soul rest in peace.

Gp Capt A B Mehta

Vikshar said...

In case of Army's grievance redressal mechanism, even statutory complaints are NOT processed on grounds like 'Main Body' too voluminous. The authorities are known to refuse even giving a complaint number for months at end. This throws up two interesting questions.First,if a petitioners complaint is statutory can the organisation/intermediary authority refuse to process the complaint on basis of a voluminous main body? There is No such restriction for writs etc while seeking legal remedy.Can an Army Order guideline overrule the statutory right of complainant?Secondly, is there any laid down yardstick within which the intermediary authority has to give a complaint number.

Gondesi said...

Maj Navdeep it seems this is a total officers tribunal of armed forces. what it is all about.

debonair_dhillon said...

Dear Sir
Your response would be highly appreciated as it may show my family a ray of hope...
My dad passed 4 years ago and now we received a letter stating that my dad's case was transferred from High Court to AFT bench and letter says that we need to be present at AFT principal bench(New Delhi) on next hearing.
I need to know that can anyone from family(Wife,Son,Daughter)be present on behalf of my dad...?
or does it have a work around so as family is compensated in some way and relieved..

Thanks
Manmeet Singh
(Son)

priya said...

it's good to read abt any reform in the law of armed forces. but i want to know abt d facilities for d families of expired soldiers of army in district like tawang in arunanchal who got no recognition as shahid, what abt his widow n children. is there any provision for service for widows?

UMED said...

1. With due regard the following points are submitted for your kind consideration please:-

(a) Family Pension. It must be equated at par with last Pension drawn by the deceased Offr/JCO/OR because the families have to bear the burden of running a household after the demise of the spouse. Most of the times unsettled children and its ramification falls squarely on the widow of the soldier.

(b) Disability Pension Formula. It must be worked out as an appendage to Pay/Pension to ensure that Service Pension plus Disability Pension should be at least 100% of last pay drawn and for this disability pension of those armed forces personnel who got disabled during the military service in peace/war time be at par with their service pension because they lost their service in the mid without any fault of them and have not been provided job in civil & army.

(c) One Rank One Pension (Parity in Past and Present Pensioners). Ex-Servicemen have been voicing for One Rank One Pension for the past 25 years. Please ask the Govt to review its stand and sanction One Rank One Pension and save the old ex-servicemen from discrimination and deprivation. In fact we are those, who leaving their family behind had also served at far flung boarder areas in snow and desert areas with minimum facilities and allowances. We had also sacrifice our golden day of life in the service of the Nation. Kindly help us.
Ex Nb/Sub/Clk Umed Singh Parashar, Delhi

kaushik said...

Sir, this is regarding stepping up of pay. I m serving Hav of AOC. I am getting less basic pay than my juniors from 5th CPC. After prolonged corres I have been adj basic pay equal to my junior to whom compared. After adj i still getting less basic pay from other juniors. CDA Secunderabad and PAO(OR) AOC stating inability to settle the issue stating stepping up of pay for second time will not be considered as per existing policy. how I can get my entitled payment.