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Tuesday, February 26, 2013

The travails of being a soldier in India!

If the soldier must thank an entity, in the first order the gratitude must move towards not our society but our Constitutional Courts, especially the Delhi and the Punjab & Haryana High Courts, for historically upholding what is due to the soldier and for fiercely standing behind the rights of the ones who guard our borders.

What does one gain by becoming a soldier in this country today? Endless rounds of litigation? Red-tape? Continually fighting against the system, including against the ones tasked with protecting his or her rights?

Hear the story of Maj Arvind Suhag, an officer who had to fight the odds to get what should have logically and effortlessly flown towards him. And none came to his rescue, except our Constitutional Courts.

Maj Suhag is a 100% disabled officer who while undertaking a proper operational move in an operational area (general area Kargil) in a notified operation suffered a disability when his vehicle fell down a gorge. The disability not only resulted in loss of memory and brain damage but also resulted in the officer being rendered bedridden for a very long period. The disability was correctly notified as ‘Battle Casualty’ as per existing rules by the Army.

Litigation with Haryana Government: The Haryana Government provides an ex-gratia amount from the State for disabilities suffered in operational areas which have been declared ‘battle casualties’. The said ex-gratia was refused to him on the pretext that his disability was a result of a ‘vehicle accident’ only. A simplistic and sadistic view to say the least. The officer had to approach the Hon’ble Punjab & Haryana High Court, which in 2010, ruled in favour of the officer and with the following remarks:-

“…Ex-gratia payment is not always, paradoxically, an act of charity….The act of heroism which the statement claims that the petitioner's act did not evoke, is in some sense a wrongly exaggerated expression. I do not see from the terms of the policy that the person must have been there actually placing his fingers on the trigger of a gun or hurling a bomb in military action to be entitled to the promised payment. A person, who is in the place of action at the Army and who suffers an injury in the manner contemplated in the policy, which includes an accident in an operational area that is not due to negligence of the person, could well make a successful claim. If we must give the expression battle casualty any meaning, I would understand it to mean to a situation where a person while actively involved in the military service in an area, which is a battle zone suffers an injury, then it shall be a battle casualty. If there is, therefore, a certificate that the petitioner has suffered a battle casualty (see para 1 above), to take a different view and stonewall the claim of the petitioner from obtaining a benefit of the policy will make meaningless the beneficient and lofty objective which the policy proffers. A State cannot drive a person, who claims a benefit under the policy for a full-fledged adjudication in a Civil Court to ascertain the nature of injury, so long as the policy statement itself does not require any specific mode of proof…”

The amount was paid to the officer by the Haryana Government but the interest awarded by the High Court was not. Thereafter the interest was partially paid when the officer was forced to file a contempt petition in a second round of litigation. The officer still awaits full implementation of the interest part of the judgement rendered by the High Court.

Litigation with Union of India: As would be known to most, operational disabilities in notified operations are eligible for grant of ‘war-injury’ pension rather than regular ‘disability pension’. Though the officer’s case squarely fell within policy and even the Army had declared the disability as ‘battle casualty’, the admissible war injury pension was not released to him forcing him to knock the doors of the Armed Forces Tribunal (AFT). The Principal Bench of the AFT however dismissed his petition agreeing with the government. Challenging the orders of the AFT, the officer approached the Delhi High Court which has not only granted him the applicable war injury pension but has awarded him 12% interest on the same alongwith costs of Rs 50,000. The following observations of the High Court merit reproduction:-

“…such a narrow interpretation of what is otherwise a widely phrased condition, is unwarranted. This would necessarily imply that those who are on the way – like the petitioner, in an operation-notified area and are intrinsically connected with the success of such operations cannot ever receive war-injury pension even though their aid and assistance is essential and perhaps crucial for its success. The classification of the residual head, i.e. “operations specially notified by the government from time to time” has to be read along with the broad objective of the policy, i.e. - those who imperil themselves – either directly or indirectly – and are in the line of fire during the operations, would be covered if the injuries occur in that area or in the notified area of operation. This is also apparent from the situations covered in Clause (g) and (h) which nowhere deal with battle or war. In fact, clause (h) even covers injuries and death which occurs while personnel are “employed” in the aid of civil power in quelling agitation, riots or revolt by demonstrators” This means that if someone is travelling in the thick of such unrest and the accident results in death or injury, his next of kin would be entitled to war-pension whereas those who actually suffer similar injuries in an area where operations are notified, would not be entitled to such war injury pension…It seems that the military bureaucracy in this case or someone within it felt that since injuries were described more specifically as “accidents” while travelling on duty in government vehicles” – in category (C) of the letter/policy dated 31.01.2011, the petitioner was disentitled to war injury pension. The Tribunal’s bland acceptance of these decisions has regrettably resulted in denial of justice to the petitioner. This Court is, therefore, of the opinion that the impugned order of the Tribunal cannot be sustained. The petitioner’s claim for grant of war injury pension in terms of Clause 4.1(E)(i) has to succeed…In parting, this Court cannot resist observing that when individuals place their lives on peril in the line of duty, the sacrifices that they are called upon to make cannot ever be lost sight of through a process of abstract rationalisation as appears to have prevailed with the respondents and with the Tribunal…He, like any other personnel, operated under extremely trying circumstances unimaginable to those not acquainted with such situations. The cavalier manner in which his claim for war injury pension was rejected by the respondents, who failed to give any explanation except adopt a textual interpretation of Clauses (C) and (E), is deplorable. In these circumstances, the petitioner deserves to succeed…”

Four rounds of litigation and the officer succeeded, would a jawan or his family afford such litigation? Isn't it ironical that the State or the organizations which are to care and comfort our men and women in uniform assume an adversarial role by embracing literal interpretation and sticking to the letter and not to the spirit of beneficial provisions? It is yet another matter that the Supreme Court in UOI Vs Harjinder Singh’s case has already upheld that even natural illnesses in operational areas would entitle a person to ‘war injury pension’, but then the textual interpretations of the officialdom seem to have more sanctity than judicial pronouncements in our country.

Who shall cry for the Indian soldier? 

Friday, February 15, 2013

OPed in 'The Tribune' on the Armed Forces Tribunal, military litigation and allied issues


Free Armed Forces Tribunal from MoD control

Navdeep Singh

To be bold in what I say, or be soft, that’s my dilemma. But since it’s my personal opinion, I shall go with the former.

The concept of Armed Forces Tribunal (AFT) needs redemption, and urgently so, by all stakeholders. In 2009, just about three and a half years ago, the AFT became functional with much fanfare as an ‘independent’ forum to adjudicate matters related to defence personnel. It’s 2013 but despite best efforts of the adjudicating members and those representing litigants, AFT’s justice delivery system leaves much to be desired. Litigants hence cannot be blamed for lamenting at times that they were better-off having their cases heard by High Courts, the independence and majesty of which cannot be matched by the system of tribunalisation.

Problems are multifarious, let me run through some of them:

No power to enforce its orders
The AFT is a tribunal which does not possess powers of civil contempt. Though there is mention of civil contempt in the rules and forms framed under the AFT Act, the substantive provision is missing which shows that it was chopped from the drafting table somewhere along the way. The reason is not far to seek, even when the Bill for introduction of civil contempt powers was recently introduced and referred to the standing committee on defence, the defence services themselves reportedly opposed the grant of powers of contempt to the Tribunal. In the Act, there is a vague mention of power of execution of orders passed by the AFT but there is no procedure prescribed for such execution. Till date the Tribunal survives on ambiguity. So if a person is not released on bail when ordered by the Tribunal or not reinstated when acquitted or not granted his or her pension when directed, there isn’t much that the litigant can do except bewail and bemoan.

Control of the Ministry of Defence
The AFT currently functions under the Ministry of Defence which controls its infrastructure, appointments, rule-making and much of everything else. Though the independence of Members can hardly be doubted, for a litigant it seems more of an extension of the State- a government instrumentality rather than an independent judicial forum. A fright, since the cases were hitherto being heard by the judiciary whose hallmark is independence, given the separation of powers in our democracy. The AFT is a part of, and dependent upon the defence ministry- that very ministry against which it is to pass all orders. Even when a proactive rule is to be introduced or changed, the matter is referred to defence services and departmental bureaucracy, which of course is more inclined towards looking after its own interests and keeping the Tribunal toothless. For example, the matter whether or not civil contempt powers were to be granted or not was referred to the three services but the question arises as to why would the defence services affirm the grant of teeth to the AFT when those teeth are to ultimately bite them on disobedience of orders? Despite orders of the Supreme Court in L Chandrakumar Vs Union of India (1997) and Union of India Vs R Gandhi (2010) and of the Punjab & Haryana High Court in Navdeep Singh Vs Union of India (2012) to the effect that Tribunals should be placed under the Law & Justice Ministry, most of the Tribunals continue functioning under their sponsoring or parent ministries notwithstanding the laudable efforts of the Law Ministry to implement SC decisions which are being resisted by most ministries. The reason behind this resistance is ostensibly the fact that ministries feel that they would ‘lose hold’ over Tribunals. An otiose argument since the executive anyway is not supposed to maintain hold over judicial bodies. The defence ministry has not even provided basics such as security to the institution or official accommodation to members. Rules are also arbitrarily notified. For example, the defence ministry recently made it compulsory for petitioners to file affidavits with their petitions, also court fee is only accepted by way of Postal Orders or bank drafts. Now imagine personnel posted in field and isolated areas looking for notaries to get affidavits attested or looking for post offices and banks to remit court fee! While the world moves away from red-tapism, the same is adopted with impunity by the officialdom. Business in tribunals, as also held by Courts, is supposed to be user-friendly, informal and procedure-free and that is the reason why even the Code of Civil Procedure is not applied to most tribunals, however the defence ministry does not seem to think so.

Fractured provisions
The drafting of the AFT Act has been messy. Besides the absence of any power of enforcement, appeal has been instituted directly to the Supreme Court. The language thereof (Section 31) has been shamelessly plagiarized from provisions of the Supreme Court of United Kingdom. This despite the fact that the parliamentary committee discussing provisions of appeal had remarked that though an appeal was being provided to SC for questions of general public importance, similar provisions for the Central Administrative Tribunal had been interpreted by the SC earlier in L Chandrakumar’s case wherein it was held that jurisdiction of High Courts could not be ousted as per our Constitution and hence orders of the AFT would also have to be challenged as per Constitutional provisions. Notwithstanding the SC decision, the remarks of the parliamentary committee and orders of High Courts, the defence ministry continues to harp that orders of AFT can only be challenged before the SC. Elsewhere in the Act, there are parts which require amendment but rather than legislatively amending those provisions, the defence ministry has issued executive gazette notifications for amendment. Now can a Parliamentary Act be amended by an executive order? It would take half of a layperson to answer that.

Lack of respect to AFT orders
Since there is no power of enforcement, most orders are not implemented unless litigants re-approach the Tribunal seeking implementation. Most orders in favour of litigants are challenged by the ministry before the SC thereby making it extremely difficult for defence personnel to effectively defend their cases because of the exorbitant cost of litigation involved. Recently the ministry informed a Parliamentary committee that only 303 judgements remained unimplemented whereas the actual number is estimated to be between 4000-5000. Written instructions have been passed not to implement orders unless the petitioner re-approaches Tribunal with an execution petition. Implementation is refused on the pretext that the AFT orders are not in consonance with ‘govt policy’! Now if govt policy is sacrosanct, then why would any interpretation be required at all from a Tribunal? Courts are required to interpret, read-down, harmonize, and if required, strike down policies, why is the defence ministry surprised?

Adversarial role of the defence ministry
The role played by the defence ministry is adversarial towards litigants. Petitioners are viewed as ‘Enemies of the System’. Even settled and covered matters are not conceded, government counsel not briefed fairly and all pleas are opposed as if it is state policy to increase litigation and live off the miseries of poor personnel. As the joke goes, if a person files a plea that Sun rises from the East, it would be opposed by the Defence Ministry stating that it rises from the West. Unwanted, forced and imposed multiple litigation upto the SC is the order of the day and shockingly most appeals filed by defence ministry are against disabled soldiers. The vacancy notification for administrative members is also not published in any newspaper. Administrative members of the first batch were selected mostly on basis of military seniority. Care however must be taken to select administrative members on merits with a balanced, sensitive and flexible approach since besides other issues, they are also to deal with cases of disabled soldiers and military widows. In fact even a short judicial capsule is desirable to enable the selectees unlearn military rigidity and to ensure that they transform themselves into adjudicators without institutional bias rather than representatives of the establishment. Litigants expect AFT to be free, progressive and proactive, not conservative and inhibited.

Till the time issues concerning the AFT in particular and military justice in general are suitably addressed, preferably by a body under the law ministry totally independent of the influence of the defence ministry, concepts of justice and equality so cherished in our democracy and which form the grundnorm of the Preamble of our Constitution, would merely remain high sounding words with little practical usage for military litigants. 

The writer is a practicing lawyer and the founder-President of the AFT Bar Association

Friday, February 8, 2013

A Tale of Two Departments – Part II

As discussed in this earlier blog titled ‘A tale of two departments’, while the Department of Pension and Pensioners’ welfare (DoPPW) continues to push for pensionary reforms on the civil side, just the opposite can be said about the Department of Ex-Servicemen Welfare which views defence pensioners as its adversaries.

The DoPPW continues to take the views of all stakeholders before issuing fresh policies and for removing the anomalies in existing policies. The meetings between employee/pensioner organizations and the staff side are routinely followed up by Action Taken Reports (ATRs), a latest example of which can be viewed by clicking here, and the parleys between various stakeholders is also a continuous process.

On the defence side, while it is understandable that serving defence personnel cannot directly agitate their grievances due to the prohibition of unionism, what stops the Defence Ministry to have a similar recognised official mechanism for veterans and their families?

It’s the worst irony of our times that the department of ex-servicemen welfare, which is supposed to look after the interests of ex-servicemen, itself becomes their sworn enemy by filing mindless appeals against favourable verdicts rendered for veterans by courts and tribunals and also by stonewalling and opposing every single progressive move initiated by the Services HQ or veteran organizations. To sample this animosity, I would not be off mark when I say that 90% of appeals filed by the MoD in the Supreme Court are against disabled soldiers. Sad.