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Wednesday, March 27, 2013

Appalling statements by the Department of Ex-Servicemen Welfare before the Parliamentary Committee on Defence which lower the dignity of judicial institutions

Last time I checked, you were sleeping - Prince (Dreamer, 2009)

The depositions made before the Parliamentary Committee on Defence, which, besides other issues, was deliberating upon providing the powers of civil contempt to the Armed Forces Tribunal (AFT) to ensure compliance of its orders, have brought to fore and on record what really the Department of Ex-Servicemen Welfare (DESW) thinks about the majesty of judicial institutions in this country, and how even the Defence Services themselves do not realize what is and what is not in their long term benefit. The deliberations have also brought again to light as to how the DESW projects itself as the greatest saviour of former defence personnel when the reality is just the opposite and is known to every single veteran in this nation.

The statements of the Secretary of the Department of Ex-Servicemen Welfare (DESW) before the Parliamentary committee have not only been crude but downright condemnable, in a complaining tone and bordering on being contemptuous. An attempt has been made to kill judicial initiative. The saving grace was that the Defence Secretary himself opposed the thought process of the DESW and so did the MoD as a whole. Even the Secretary, Ministry of Law and Justice has fully supported the viewpoint of the Defence Secretary, veterans and ex-servicemen organizations.

My observations on the points raised by the DESW and other issues are in the following paragraphs.

Unethical and contemptuous statements by the DESW.

Paragraphs 3.7 and 3.8:

Statement of Secretary DESW: Here, the Secretary DESW makes the absurd statement that Contempt Powers are not required by the AFT since both the AFT and the DESW work for the betterment of ex-servicemen and such powers are only required when there is a dispute between private parties. The Secretary also states that there is harmony between the DESW and the AFT.

Reality: It is common knowledge that all cases before the AFT are between serving and retired personnel VERSUS the Union of India represented by the respective Secretaries. Proceedings before the AFT are judicial proceedings instituted by affected individuals against the Govt, and the AFT also is supposed to pass orders against the Govt, then how is that the DESW and the AFT are working in harmony? By this logic, no Court or Tribunal in India should have powers of contempt when it comes to passing orders against the govt! the biggest joke also is about the DESW working towards the betterment of ex-servicemen, if that be so, then why at all is there massive litigation pending against the DESW in Courts all over the nation? The Secretary DESW also seems to give an impression as if the AFT is an arm of the govt such as some public grievance office in an organization.

Paragraphs 3.9 and 3.10:

Statement of Secretary DESW: Here Secretary DESW states that by and large decisions are implemented unless the decisions are against govt policy and that either party is free to implement or if possible to go in for appeal. The Secretary further states that there is a conflict of interest related to Administrative Members sitting on Tribunals since they may also be affected by decisions in matters involving pension.

Reality: The Secretary hence genuinely believes that parties have the freedom or choice to implement decisions or otherwise. Mr Secretary, these are judicial verdicts and are to be implemented through your nose, you do not have the freedom to not implement. Either you implement or obtain a stay on appeal, there is no third way out, so forget about ‘freedom of implementation’. Secondly, all courts and Tribunals are supposed to examine reasonableness of Govt policy and no authority can state that it would not implement a decision if it is against govt policy. If govt policy is so sacred then why are Courts and Tribunals required? Only those individuals are supposed to approach Courts and tribunals who are dissatisfied with policy. Thirdly the statement of conflict of interest is crass to say the least. It is commonly known that Judges of Courts and Members of Tribunals recuse themselves if they are affected by an issue they are examining. And is the Secretary suggesting that AFT should not touch any pensionary matter since Administrative Members are all pensioners? Well if this is the logic to be followed then decisions on pensions being passed since 1985 by Central Administrative Tribunal or decisions regarding service conditions or pensions of the judiciary being rendered by HCs and the SC since times immemorial should be declared null and void? Totally absurd.

Paragraph 3.11:

Statement of Secretary DESW: The Secretary quotes some out of context judgement of the Chennai Bench of the AFT and states that Tribunals should avoid impinging upon policy matters.

Reality: A judgement of the Chennai Bench stating that it could not adjudicate on policy matters has not been accepted by the Madras High Court which had remanded back the matter to the AFT for adjudication. Even otherwise, facts of each case are unique. And it is totally unethical for the Secretary DESW to state before the Parliamentary Committee that Tribunals should not declare law on policy matters. The Secretary DESW is nobody to interfere in judicial functioning or to command or demand what a judicial body should or should not do. The Secretary DESW also seems to be unaware of the law of the land. In L Chandrakumar’s case, a Constitutional Bench of the Supreme Court has held that not just policy but Tribunals can also quash statutory rules. The power of the AFT to quash policies of the MoD also came into question in Union of India Vs AK Bhutani wherein the MoD raised the legal point whether AFT could quash its policy, the Supreme Court upheld the order of the AFT wherein the policy was quashed.

Paragraph 3.12:

Statement of Secretary DESW: Here the Secretary DESW comments on issue of broad banding of disability element of disabled soldiers where the SC and various benches of AFT have already ruled in favour of disabled soldiers. The Secretary brazenly and unethically discusses the merits of an issue which have been and are being adjudicated by judicial bodies. He also states contemptuously that disregard to govt policy is not a routine but limited to one or two benches only.

Reality: The Secretary DESW has no right to comment upon a judicial issue or judicial pronouncement. This is downright contemptuous. The Secretary has also shamelessly stated that one or two benches (most probably referring to the Principal and Chandigarh Benches) are disregarding policy. Mr Secretary, why are judicial bodies required if govt policy is to be always respected? And what right does this man have to comment on judicial functioning, this is total interference in judicial operation and amounts to criminal contempt and lowering the majesty of judiciary in this country. Also the decision on the issue of broad banding at the time remained pending with the Raksha Mantri who had sought the opinion of the Solicitor General, hence the statement of the Secretary clearly shows that the DESW has not only pre-judged the issue and jumped the gun but also managed to hoodwink the entire length and breadth of the officialdom on the subject.

Self-defeating stand of the three Services.
Also it can be seen from Paragraphs 3.13 to 3.19 that all three services have opposed conferring of powers of civil contempt to AFT on the pretext that this would cause operational disruptions in the sense that officers posted in operational areas would be frequently summoned by the AFT. It is also important to point out that all official and non-official deposers have supported the grant of powers of civil contempt, except the three services.

Unfortunately, the Defence Services have not realized that the senior officers who have made or prepared the statement or have been fed this incongruity have not fully understood the scope of civil contempt. They have also not fathomed that Members of the Bench who have also been former High Court judges or senior retired military officers are well aware of the four corners within which they have to function. Only those individuals should be wary of contempt who willfully disobey directions of the Court. Also, it is a known fact that contempt proceedings are never launched against officers posted in operational areas and in almost all cases are instituted against the Defence Secretary or in rare cases against the Service Chiefs or some appointments of the Services HQ. The Services are not holy cows who can stand distinguished from others as far as the applicability of law of the land is concerned. Senior officers who are convinced that AFT should not be granted contempt powers should understand that historically the High Courts were performing the same functions that the Benches of AFT are performing today, so what has changed? When HCs had powers of civil contempt while performing the same functions and it did not impinge upon the operational effectiveness, then how would the grant of same powers to AFT hamper the operational readiness now? If CAT has powers of civil contempt, how can AFT be treated differently? If a senior officer files a case for promotion or concerning his ACR or pension after retirement and a favourable decision is rendered, and it is not implemented by the MoD, would he or she then repeat the same statement that he may have rattled off before this committee? The answer would be in the negative. With all due respect, that is why I say that the services do not have the expertise to understand what is good and what is not good for them and the long term implications of such a bizarre stand. In other words, the Services themselves would be the greatest losers if their view is accepted.

The saving grace.
The Ministry of Defence (as a whole, separately from DESW) thankfully and gracefully projected to the committee the desirability of requirement of civil contempt powers. The MoD also emphasized that even the said statement had been made before the Supreme Court on the opinion of the Solicitor General. It was also brought out that even the Ministry of Law and Justice approved the same. The same becomes clear from Paragraphs 3.28 to 3.33.

The stand of the Defence Secretary requires full appreciation in this regard, wherein totally opposed to the stand of the Secretary DESW, he stated that orders have to be implemented without fail or an appeal is to be filed. There was full appreciation of the situation, the majesty of law, separation of powers as enshrined in the Constitution and the Right to Constitutional remedies conferred by the Constitution, on part of the Defence Secretary.

The following statement of the Defence Secretary sums the very pertinent and admirable views of the Ministry:-

“…The AFT has a utility. Thirdly, challenging the authority of any authority is a fundamental right of every individual, whether he is in service or retired. We have to provide a reasonable opportunity to him and an institution where he can go and file his grievance. Coming to the compliance of the order, as I said, it is our earnest effort that we must respect the order of the AFT. As I said, it is equivalent, in terms of status, to the high courts. Therefore, we do that always. But there may be cases where we have difference of interpretation. The Government may not agree or we feel that there is a scope for appeal, in that case, we go to appeal in Supreme Court or file writ in High Court. It is an institution which has a utility and we support that and that is why we have come for this amendment."

Taking AFT out of the purview of MoD.
One of the additional points as brought out by almost all witnesses was that the control of the AFT should not remain with the MoD. This has been agreed upon by the Committee and is also in line with the decisions of the Supreme Court in L Chandrakumar and R Gandhi’s cases and of the Punjab & Haryana High Court in Navdeep Singh Vs Union of India.

On the same subject, the keenness of the MoD to hold on to the reins of the Tribunal also came to fore through this statement of the Law and Justice Ministry:-

4.6  Another representative of the Ministry of Law and Justice apprised the Committee:
"I have seen the files that the Ministry of Defence is opposing the move to leave the control of AFT. They do not want to leave the control. So far as filling of appeal is concerned, I think against almost each and every matter the appeals are filed".

Net result.
The Committee however has taken the middle path and while recommending powers of civil contempt, has stated that serving military officers should not be made to appear before the AFT for civil contempt, and powers of civil contempt should be granted only qua officers of MoD, civil organizations and retired defence personnel.

In my opinion, this is not only discriminatory but also liable to be stuck down if challenged on being accepted as recommended by the Committee. In any case the half hearted recommendation is a good first step which should further stabilize with the march of law. In fact, the only three stake-holders in the issue were the Ministry of Defence, Ministry of Law and Justice and Ex-Servicemen organizations/private witnesses all of whom have displayed utmost maturity on the subject. Needless weightage has been granted to the views of the Secretary DESW who even ethically holds no brief to go against the MoD as a whole.  

Saturday, March 23, 2013

Clarification on the issue of ‘Ex-Servicemen’ status to boarded out recruits

As mentioned on this blog on 20 September 2010, recruits who are boarded out with a disability pension are also to be treated as ‘Ex-Servicemen’ as per a clarification issued by the Ministry of Defence in the year 2006.

However since the definition of ‘Ex-Servicemen’ is basically promulgated and regulated by the Department of Personnel and Training (DoPT), many organisations, such as Rajya Sainik Boards, were not accepting the clarification issued by the Ministry of Defence and also not issuing them with Ex-Servicemen identity cards or allowing them to avail various facilities including age relaxation and reservation.

In the year 2012, the DoPT finally issued a fresh notification for the definition of ‘Ex-Servicemen’ and this time explicitly included boarded out recruits to tide over the initial ambiguity.

After the issuance of the DoPT notification which included within its ambit boarded out recruits also, most organisations started providing the said benefit to boarded out recruits but some were still reluctant to cover those who were released prior to the issuance of the DoPT notification dated 04 Oct 2012.

The MoD has now clarified the issue in conjunction with the DoPT vide its fresh letter issued on 18 March 2013 wherein it has been ordained that all recruits boarded out on or after the issuance of the earlier MoD letter dated 01 Feb 2006 would be covered under the said definition.

Though the subject has been clarified in the above terms, in my opinion, boarded out recruits in receipt of disability pension would ipso facto be included in the pre-existing definitions in force prior to 01 Feb 2006 too since unlike officer trainees, recruits are entitled to pay and disability pensionary benefits as applicable to regular Sepoys and are also under the purview of the Army Act and hence cannot treated differently than others. Even otherwise, the MoD clarification issued on 01 Feb 2006 did not contain any cut-off date for the applicability of the clarification which has now been superimposed through back-door.

Saturday, March 16, 2013

The Wilkerson case, and the controversy thereon….

In the very recent past, the case of US Air Force Lt Col James Wilkerson, a fighter pilot and Inspector General posted at Aviano Air Base at Italy, has caused much brain-storming on the subject of military commanders and convening authorities having been granted the powers to overturn verdicts of courts-martial. In the said case, while the General Court Martial had rendered a verdict of one year imprisonment and dismissal from service to the officer, the convening authority, a Lt Gen based in Germany, overturned the verdict resulting in calls for review of such authority provided to military commanders.

The controversy is not restricted to just the Armed Forces of the United States but has a sounding-board effect on militaries of all democracies.

Mr Eugene Fidell, the President Emeritus of US National Institute of Military Justice, in this original work published here (link), recounts the controversy. A must read for anyone even remotely connected with military law.

(After Mr Fidell’s write-up is a link to the call of the Senate Armed Forces Committee for deliberating this issue)

Aviano II

Eugene R Fidell

It's rare for two important things to happen in the same place. But so it is with Aviano Air Base, in Italy. Among military lawyers, Aviano was previously associated with a terrible accident in 1998 when a U.S. Marine Corps jet severed the cable of a ski gondola, sending 20 civilians to their deaths and leading to high-profile courts-martial. Aviano is now in the news because of another military justice case.

Last November, an Air Force general court-martial at Aviano convicted a fighter pilot (and acting inspector general) named James Wilkerson of sexually assaulting a civilian contractor and sentenced him to a year's confinement and to be dismissed from the service. By statute, the court-martial was subject to review by a three-star general stationed in Germany before the case would enter the military appellate court system. Under article 60 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 860, that officer -- known as the convening authority because he is also responsible for establishing (or convening) the court-martial and deciding that the case should be referred to it for trial -- has "sole discretion" "to dismiss any charge or specification by setting aside a finding of guilty." Authority to modify the findings and sentence "is a matter of command prerogative involving the sole discretion of the convening authority." Rule for Courts-Martial 1107, which is part of the Manual for Courts-Martial (an Executive Order) adds that, before taking post-trial action, the convening authority may consider not only the record of trial, the accused's service record, and any matters submitted by the accused, but also "[s]uch other matters as the convening authority deems appropriate." According to the official "Discussion" under R.C.M. 1107, the convening authority may "for any reason or no reason" disapprove a finding of guilty. The Manual does not require an explanation.

Late in February, Lt Gen Craig A. Franklin, the convening authority, exercised this power and disapproved the findings of guilt. Lt Col Wilkerson was released from confinement.

Given the current controversy over sexual assault in the military, it is not surprising that Lt Gen Franklin's action has sparked heated debate. This week the Senate Armed Services Committee will conduct a hearing on sexual assault in the military and it is likely the Wilkerson case will be Topic A.

Legislators from both sides of the aisle and across the political spectrum are expected to weigh in. It is important that they do so with a full understanding of the issue.

First, it would be wrong to harass or penalize Lt Gen Franklin. His action, whatever the reason(s) for it, was plainly authorized. Congress granted him sole discretion and he used it. To probe his reasons is to repudiate the statute. It is also a form of legislative "command influence" calculated to affect others' exercise of discretion, and as such no more appropriate than "unlawful command influence" exerted by senior officers.

But that is not to say Congress should do nothing. It may want to use this incident as an occasion for revisiting the statutory grant of unbridled post-trial review powers to commanders. Democratic countries are moving away from this role for commanders. Congress ought to fully inform itself of that trend and make an informed judgment as to whether the United States should abandon this command-centric aspect of the military justice system. Such a shift would rationalize our system, which includes not only a rough replica of the jury system, but also a military trial bench, two tiers of specialized appellate courts, and a clemency and parole system. The convening authority's post-trial power of review is a throwback to an earlier age and fundamentally discordant with other, more modern aspects of the military justice system. What are the members of courts-martial -- our uniformed jurors -- to think if they know that a commander can set aside the verdict they have painstakingly rendered after hearing the evidence, perhaps asking questions of their own (as military law permits), applying the military judge's binding legal instructions, and deliberating in secret?

If it conducts this examination of the back end of the military justice system, Congress should also look at the front end, where non-lawyer convening authorities enjoy equally broad discretion to decide which cases will be referred for trial by court-martial. To bring the one up to date and into sync with other aspects of the UCMJ while leaving its mate hard aground in the 18th century would make no sense. Congress could do as other democratic countries have done in the last several decades, and move the prosecution decision to a legal official such as a director of military or service prosecutions and away from commanders. Under a reformed system, commanders could of course express their views as to how any particular case should be handled, but they would have to do so in writing and the actual decision would lie with a trained, independent prosecutor.We can expect heat about the Wilkerson case in the coming weeks, but perhaps we can hope for some light as well.

Addendum as of 2:30 p.m., Mar. 11, 2013: see Secretary of Defense Hagel's letter dated Mar. 7, 2013 to Sens. Boxer and Shaheen.
Readers may now like to peruse the House Armed Forces Committee of the United States website wherein a letter to Secretary Hagel has been addressed on the same subject. 

Wednesday, March 6, 2013

Tables have turned…..

There was a time when the Para-military forces (Central Police Organisations, now known as Central Armed Police Forces) used to look up to the defence services for inspiration. The defence services were the benchmark worth emulating.

The common lament amongst those serving in khakhi was that they were headed by outsiders and not by their own, that they were neither policemen nor faujis, that they were not granted facilities at par with their military counterparts though they too performed exacting duties.

The times have changed. Tables have turned.

Full credit goes to the Ministry of Home Affairs and also the heads of these organisations, who are from the Indian Police Service, for silently and effectively ensuring the much required welfare and comfort of the brave men and women of the CAPFs. Slowly and steadily they have not only ensured sensitivity towards members of the CAPFs but also taken care of the fact that they do not lag behind others in the facilities and benefits that they deserve.

Let’s run through some of the positive and well deserved changes brought about for CAPFs in the recent past:-

(a) Faster promotions and additional avenues: The promotions, both at non-gazetted and gazetted level, have been rationalized. Additional layers stand removed. For example, after the 6th CPC, the rank of Addl DIG stands abolished and officers are promoted from Commandant level directly to DIG. Also the rank of ADG has been introduced in many forces for cadre officers. Force heads have vouched for and strongly recommended improved cadre management including schemes of Assured Career Progression for the rank and file.

(b) Better posting profiles and deputations: Care is being taken for ensuring a balance between field and peace postings with emphasis on stability and optimum family life. Officers are also relieved for deputation on stable security related appointments in a smooth manner without citing any HR crunch.

(c) Facilities and benefits: The system of canteen services has been introduced and is going great guns without the red-tapism as is experienced in our CSD. Soon, it is expected to be better stocked and more effective than CSD.

(d)  Ex-force status: As discussed earlier on this blog, soon members of CAPFs would also be granted additional facilities and benefits based on the status of their being ex-members of these forces in a similar manner of what is being done for ex-servicemen of the defence services.

(e) Pay and allowances: The pay-scales and allowances are on a constant upward swing and an example can be visualized from this blogpost by Mr Nitin Gokhale.

(f) Pensionary benefits: The Department of Pension and Pensioners’ Welfare (DoPPW) deals with their pensions. An extremely sensitized department, it treats members of the CAPFs as its own and goes all out to alleviate their problems. For example when pension was abolished under the traditional system and the New (contributory) Pension Scheme was introduced for members of CAPFs, in order to overcome the difficulties of disabled personnel, it was decided that apart from the pension under the NPS, disabled personnel shall remain eligible even for regular disability pension under the Central Civil Services Extraordinary Pension Rules [CCS (EOP)] thereby bringing them the much required relief. The difference of attitude between the DoPPW and the Ministry of Defence has already been adequately discussed on this blog before.

(g) Litigation: Rarely would you find appeals being filed by the Govt against pensionary or disability benefits or welfare oriented schemes granted to members of the CAPFs, however our organizations, especially the Department of Ex-Servicemen Welfare and some elements of the Personnel Services Directorate, get sadist pleasure in challenging before the Supreme Court almost every case decided by judicial bodies in favour of disabled personnel. Isn’t it a matter of shame that almost 90% of Civil Appeals and SLPs filed by the Ministry of Defence in the Supreme Court are against their own disabled soldiers? Our own organisations are no different. When the AFT asked the Director General of Armed Forces Medical Service (DGAFMS) to honour the govt & AG’s Branch directions to grant limited outpatient medical facilities to non-pensioner ex-servicemen such as ECOs and SSCOs who are not members of ECHS, as already provided under existing policies, held hostage through blackmail by the office of the DGAFMS, the Army itself filed an appeal against the AFT order in the Supreme Court stating that these facilities should be withdrawn! Imagine, the Army tacitly filing a case in the SC against its own existing policy seeking directions to the Army itself that it (the Army) should be stopped from providing limited facilities to its own personnel, some of them in their 80s and 90s! Would the word shameful be enough?

These were only a few examples. The care and sensitivity displayed by those at the helm of the CAPFs and also the MHA is deeply appreciable and is worth emulating by the Ministry of Defence and the three defence services. Let us salute the brave men and women in uniform of the CAPFs who truly deserve the best, and also their leaders for standing by them!

Yes, the tables have turned. It’s time for the defence services to look up to the CAPFs!